June 30, 2014 – The landmark U.S. Supreme Court (SCOTUS) decision in Burwell v Hobby Lobby Stores favoring Hobby Lobby sparked a firestorm of controversy across social media sites and network news. The case of Burwell v. Hobby Lobby was consolidated before the Supreme Court with Conestoga v. Burwell. Both Hobby Lobby and Conestoga Wood have and will continue to provide coverage of several different contraceptives for their employees but objected to rules and regulations set forth by United States Department of Health and Human Services (HHS) secretary, Kathleen Sebelius, that would force them to cover four additional contraceptives, or abortifacients, that they believe violate their religious beliefs.

The Religious Freedom Restoration Act (RFRA) of 1993 passed both the House and the Senate by an overwhelming majority and was signed into law by President William Clinton. RFRA “prohibits any government agency from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

When Clinton signed the RFRA into law, he said, “The free exercise of religion has been called the first freedom, that which originally sparked the development of the full range of the Bill of Rights. Our Founders cared a lot about religion. And one of the reasons they worked so hard to get the first amendment into the Bill of Rights at the head of the class is that they well understood what could happen to this country, how both religion and Government could be perverted if there were not some space created and some protection provided. What this law basically says is that the Government should be held to a very high level of proof before it interferes with someone’s free exercise of religion. This judgment is shared by the people of the United States as well as by the Congress.” http://www.presidency.ucsb.edu/ws/index.php?pid=46124&st=religious+freedom+restoration+act&st1

Writing for the majority, Justice Samuel Alito said, “We must decide in these cases whether the RFRA permits the HHS to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest. In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.”

The SCOTUS ruling applies only to companies that are “closely held.” The Internal Revenue Service (IRS) defines “closely held” in Publication 542, Corporations. The exclusion of four contraceptives, Plan B, Ella and 2 Intrauterine Devices (IUD) would have substantially burdened Hobby Lobby with penalties of $475M and Conestoga $33M per year thereby violating RFRA.

The U.S. Department of Health and Human Services (HHS) has already demonstrated that it does, indeed, have a “less restrictive” plan in place for those who have religious objections to the contraceptive mandate. See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4), (b).

Justice Anthony Kennedy substantiated this in his concurrence with Alito. Kennedy wrote, “The Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litigation, and that is less restrictive than the means challenged by the plaintiffs in these cases. The means the Government chose is the imposition of a direct mandate on the employers in these cases. But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.”

Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer, disagreed with Alito and wrote an impassioned 35-page dissent. “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the[Constitution’s] Establishment Clause was designed to preclude. Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations? Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude. The court, I fear, has ventured into a minefield,” Ginsburg said.

To understand why “on its face” Justice Ginsburg got it wrong, one need only read the cited statutes above. The passage of time may prove Ginsburg right unless Congress acts, which they should have done in the first place, to tighten the gaping “loopholes” that seem to pop up all through the Affordable Care Act (ACA).

Although SCOTUS did not refer to the United States Constitution, the First Amendment clearly states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The Becket Fund attorneys who represented the Greene family (Hobby Lobby) remarked on their client’s faith- “Founded in an Oklahoma City garage in 1972, the Green family has grown Hobby Lobby from one 300-square-foot retail space into more than 603 stores in 47 states (626 stores by the end of 2014). Devout Christians, the Green family believes that “It is by God’s grace and provision that Hobby Lobby has endured” and seek to run their company “in a manner consistent with Biblical principles.” This includes closing on Sundays and generous treatment of their employees, with full-time hourly workers starting at more than double the federal minimum wage.”

The blame should not fall on Hobby Lobby for its owner’s defense of Christian beliefs guaranteed to them by US law but rather on a hapless government that didn’t consider all the unintended consequences such a rule might have. Those 60 Senators who passed the massive ACA in 2010 neither read nor understood that which they were passing. Now, the nearly 11,000 pages of regulations promulgated within the ACA alone would reach three feet high. With just this one issue, there have been over 100 lawsuits filed in federal court challenging the Affordable Care Act’s birth control coverage benefit because of religious objection- not scientific fact. The two are not synonymous.

This is not a case that the “Supreme Court is ‘five guys who start determining what contraceptives are legal” as, House Minority Leader, Nancy Pelosi, suggested in her July 10 press briefing. It is not a war on women. This was a case about religious freedom and the sincere belief as to where life actually begins. Each person determines by their beliefs, the value and definition of life and that definition lie within their own minds and hearts. All sides in this issue deserve EQUAL protections afforded to them, both by the Constitution and the RFRA.