Causation and Religious Rights: Hobby Lobby Appeals to the Supreme Court

hobby-lobby1We have previously considered the relationship between causation and ethics then applied that analysis to a hypothetical employer being coerced to provide health insurance for contraceptives against the employer’s religious beliefs. Now the Supreme Court of the United States may consider causation as it relates to religious rights in a similar context.

The occasion is an application by Hobby Lobby, Mardel, and their owners, the Green family, for an emergency order against the so-called Obamacare or HHS (Health and Human Services) mandate that would require them to provide health insurance covering abortifacients.

The application describes how the companies operate:

Both companies monitor their merchandise, marketing, and operations to ensure they reflect Christian values. …Petitioners provide their employees voluntary and cost-free access to chaplains, spiritual counseling, and religiously-themed financial courses. … Petitioners close all of their stores on Sundays-at significant financial cost-to give employees a day of rest

. … They give millions of dollars from their profits to fund missionaries and ministries around the world. … And most significantly for purposes of this case, Petitioners’ self-funded employee health insurance excludes contraceptive drugs and devices (such as IUDs, RU-486, Plan B, and Ella) that they believe can cause abortion, because of Petitioners’ religious beliefs about God’s will concerning the value of unborn human life.

Notwithstanding the beliefs of the Greens and the practices of their businesses, they clearly do not qualify for religious exemptions available under the HHS mandate because, among other reasons, their purpose is for profit rather than to inculcate religious values.

The businesses and the Greens appeal directly from a United States district court that denied an emergency order against implementation of the contraceptive mandate. That court considered causation with respect to whether there is a substantial burden on the Green’s free exercise of religion. The district court noted that the Greens “object as a matter of religious faith to any act supporting or facilitating abortion, no matter how indirect.” However, “the degree to which the challenged government action operates directly and primarily on the individual’s religious exercise is a significant factor to be evaluated in determining whether a ‘substantial burden’ is present.” The court concluded:

Evaluating the “directness” factor here … the Greens are unlikely to be able to establish a “substantial burden” on them within the meaning of RFRA. [Religious Freedom Restoration Act] The mandate in question applies only to Hobby Lobby and Mardel, not to its officers or owners. Further, the particular “burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [Hobby Lobby’s] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff’s religion.” … Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.”

In other words, there are two kinds of causation problems. The first is the break in causation between the Greens and their corporations – it is the corporations rather than the Greens that are subject to the HHS mandate. But beyond that seemingly technical problem is the attenuation of the causal chain between religious conviction, the purchase of a health plan, the voluntary actions of health care providers and the voluntary actions of insured employees who would purchase the abortifacients.

While entering its ruling, the court considered itself to be “charting a course through the ‘treacherous terrain’ at the intersection of the federal government’s duty to avoid imposing burdens on the individual’s practice of religion and the protection of competing interests.” As for competing interests, “the employees’ rights being affected are of constitutional dimension — related to matters of procreation, marriage contraception, and abortion.”

The Greens argue against the court’s causal analysis. The district court referred to their argument that the “attenuation argument rewrites their faith. The government may not, they contend ‘re-draw the theological lines in religious belief systems.'” Their application argues “the crux of Petitioners’ claim is that their religious beliefs require Petitioners to remain entirely ‘independent’ of the provision and use of those drugs.” In essence, they claim that length of the causal chain is itself a religious belief about which a court may not second-guess.

This is the first HHS contraceptive mandate case to come to the SCOTUS, which is yet to decide whether it will rule on the matter.

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