Tag Archives: HHS Mandate

How a Jehovah’s Witness Helped Hobby Lobby

P1011375.JPGIn its attempt to avoid having to choose between their religious scruples and either (1) paying about $475 million more taxes annually, or (2) paying about $26 million more in taxes and dropping employee health insurance benefits, Hobby Lobby got some help from an unlikely source.

The help came from a Jehovah’s Witness whose employer ran both a foundry and a factory. He was untroubled working for the foundry that produced sheet metal, but had religious scruples about working in the factory that produced turrets for military tanks. Accordingly he quit his factory job. The SCOTUS then had to weigh whether the denial of his unemployment benefits flowed from an improper burden on his religious rights. The JW wasn’t articulate about why there was such a difference between producing steel that might be used for military purposes and working on what was obviously a turret. It might have been tempting for the SCOTUS to decide on its own reasoning that there wasn’t a substantial difference between the two kinds of jobs. But that’s not what it did because “it is not within the judicial function and judicial competence to inquire whether the petitioner . . . correctly perceived the commands of [his] faith. Courts are not arbiters of scriptural interpretation.” Such was the Court’s reasoning in Thomas v. Review Board of the Indiana Employment Security Division .

But now let’s come back to the most recent Hobby Lobby case. The government questioned the soundness of Hobby Lobby’s religious objection to providing health benefits for abortifacients, arguing “[a]n employee’s decision to use her health coverage to pay for a particular item or service cannot properly be attributed to her employer,” and “the insurance coverage at issue is just another form of non-wage compensation—supposedly the equivalent of money—and therefore should not present problems. . .” A dissent agreed with this line of reasoning, opining that “neither an employer, nor its officers and directors, by choosing to comply with the contraceptive-coverage regulation, become a party to, or otherwise encourage, an individual employee’s decision to use a particular drug or device.”

But The United States Court of Appeals for the Tenth Circuit took a deferential approach:

Such reasoning cannot be squared with the Supreme Court’s holding in [the JW case]. The Supreme Court emphasized that when the plaintiff drew a moral line between foundry and factory work, it was not the Court’s prerogative to determine whether the line he drew “was an unreasonable one.” [citing the JW case] Just so here: Hobby Lobby and Mardel have drawn a line at providing coverage for drugs or devices they consider to induce abortions, and it is not for us to question whether the line is reasonable.

This case reminds us that protection for one kind of religious belief is often protection for another. If other circuits follow this analysis, this is very good news for employers with religious objections to the HHS Mandate. Moreover, the Tenth Circuit held that Hobby Lobby can be protected by the Religious Freedom Restoration Act notwithstanding that it is a for-profit corporation.

But there will be more litigation for Hobby Lobby, as this court concluded:

We hold that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.

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Construction Company Given a Stay Against the Contraceptive Mandate

Preach-it-SistersA United States Court of Appeals has granted a temporary injunction against the “contraceptive mandate” in favor of an Illinois construction company run by Roman Catholics who have a religious objection to contraceptives.

Key to the decision is an issue we have been following here: causation, which involves an analysis of exactly how the religious conviction is impacted.  In this 2-1 decision there was a dissent which followed the analysis of the District Court whose decision was reviewed by Justice Sotomayor: Continue reading

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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

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Will it be Sin to Comply With the HHS Contraceptive Mandate?

In an earlier post we looked at the lawyer’s concept of proximate cause. We saw there is one kind of analysis that simply follows a causal chain and asks “but for X, would Y have happened?” Thus we saw a continuous chain that goes like this: Obi-wan gives the boat keys of The Force to inexperienced Luke / The Force hits and dislodges a dock / The Force and the dock drift with a tree to a narrow part of the river / the river is dammed / the river floods / distraught Leia swoons and falls off her balcony, suffering serious injury. So, “but for” Obi-Wan giving the keys to Luke, Leia would never have been injured. Accordingly, Obi-Wan’s act could be called an “actual cause” of Leia’s injury.

But something just doesn’t seem right about holding Obi-Wan accountable for Leia’s injury. We might call it equity or the light of nature, but something seems unjust about holding him responsible for her injuries. So, in order to give voice to that nagging sense of unfairness, we turn to “proximate cause.” Whereas we can say that Obi-Wan was an actual cause of Leia’s injuries we would deny that he’s their proximate cause.

But, of course, this is not tort law for the tort law’s sake. Using its concepts of causation, we looked at an application that should interest all of us: moral guilt and innocence.

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Hints on Obamacare II

Reading Tea Leaves

No time to catch your breath, folks. Now that we’ve seen the Supreme Court’s ruling in Obamacare I, it’s time to anticipate Obamacare II. Obamacare II will likely be one of twenty-three  free exercise of religion cases against the HHS Mandate for employers to provide health insurance that includes coverage of contraceptives. The analysis of that scenario under the Religious Freedom Restoration Act is detailed in National Review; whether or not that author’s conclusions are correct, you can at least walk through the steps of the analysis.

As pointed out by the Washington Post Obamacare I may have a couple hints about how Obamacare II will be decided. Continue reading

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