Charlotte Lozier Institute Submits Brief in Hobby Lobby Case

Thomas M. Messner, J.D.  

Charlotte Lozier Institute submitted a “friend of the court” brief to the U.S. Supreme Court in support of abortion-related conscience rights. The Court recently heard arguments in the Hobby Lobby and Conestoga Wood religious freedom cases and will decide those cases later this year.


The brief is available here.


CLI submitted the brief along with the Susan B. Anthony List, Concerned Women for America, and a Coalition of Female State Legislative and Executive Branch Officials.


The Hobby Lobby case raises the issue whether the government can force private employers to provide abortion-inducing drugs in health insurance plans even if doing so violates the employer’s religious beliefs.


As the brief explains:


The nongovernment parties in these actions challenge a regulation (the “Mandate”) promulgated under the Patient Protection and Affordable Care Act that violates their religious freedom by forcing them to participate in abortion. The nongovernment parties explain that the Mandate forces them to violate religious beliefs by covering in health insurance plans devices and drugs that can prevent an embryo from implanting in the womb. The nongovernment parties believe that abortion occurs when an embryo is prevented from implanting in the womb, yet federal law imposes significant financial penalties if they refuse to cover drugs and devices that can do just that.


CLI recently published a paper by CLI Associate Scholar Susan Wills, Esq., explaining that emergency contraceptives can cause early abortions.


The brief argues that the government mandate is a socially reckless policy that increases the national division surrounding abortion by transforming abortion “culture wars” into abortion “conscience wars.”


For nearly two generations, the nation has debated the “profound moral and spiritual implications” of abortion on demand. Fatigued with the “contentious” and “controversial” nature of the abortion issue, many individuals would “call[] the contending sides of [this] national controversy to end their national division.”


The Mandate goes in precisely the opposite direction. By forcing conscientiously opposed individuals and organizations to participate in abortion, the Mandate transforms abortion “culture wars” into abortion “conscience wars” and ushers in a new and “troublesome era in the history of our Nation.”


In discussing abortion, this Court has repeatedly invoked the concept of freedom from governmental intrusion in the choices of private citizens. The abortion right, as declared by this Court, is freedom from government intrusion in the choice to have an abortion. The abortion right is not a right to support for abortion from the government, much less a right to command support for abortion from other private citizens.


Without adding anything to the freedom from government intrusion invoked in this Court’s abortion decisions, the Mandate directly intrudes on the choice not to participate in abortion by imposing financial penalties on employers that refuse to provide insurance coverage that includes drugs and devices that can cause abortion. This reshuffling of interests between private citizens as well as between private citizens and the government is significant: Not even the Government has an obligation to support abortion, and federal law has long protected the choice of private citizens not to participate in abortion, yet through the Mandate the Government now forces some private citizens to support abortion for other private citizens even if doing so violates religious beliefs.


By forcing private citizens to participate in abortion, the Government transforms what this Court has declared to be a constitutional freedom from government intrusion in the choice to participate in abortion into a government-enforced right to command support for abortion from other private citizens. In so doing, the Mandate turns the abortion debate upside down and guarantees that what is already “one of the most contentious and controversial [issues] in contemporary American society” will become only more contentious and controversial. . . .


The brief also takes on the “war on women” argument often raised by supporters of the contraception mandate. As the brief explains, the contraception mandate “is said to be a pro-woman measure that advances women’s interests. Opposition to the Mandate is often characterized as a “‘war on women.’”


However, as the brief explains, “[w]omen are not a monolithic class of self-interested voters who universally value free abortion drugs more than religious freedom and limited government.” The brief cites or quotes prominent women leaders such as Helen Alvaré, Jennifer Marshall, Kathryn Lopez, Penny Young Nance, Asma Uddin, Ashley McGuire, Congresswoman Diane Black, and Kim Daniels.


The brief explains:


The “war on women” rhetoric used to describe opposition to the Mandate “belittle[s] women’s intellectual freedom to make up our own minds on the merits of ideas,” and is offensive to the many women “who do not want to be treated as a lump category whose thinking stops at our reproductive organs.” On issues involving reproductive health in particular, it is both inaccurate and insulting to suggest that “all women are cut from the same political cloth” or that the female “gender somehow thinks and votes as a monolithic block.”



The Mandate advances the interests of only that subset of women who value free abortion drugs above public goods such as religious freedom and limited government. The Mandate works against the interests of those free-minded, independent women whose personal, moral, religious, or political values lead them to support a different balance of policy considerations.


The brief also explains that female plaintiffs have been named among plaintiffs in nearly a third of the more than 45 for-profit cases filed against the mandate.


Women have as much an interest in religious freedom as anyone else, and not just as an important public good, but also as a vital individual and institutional freedom. For those women who own or operate businesses and object to participating in abortion, the threats posed by the Mandate are concrete and real: Of the more than forty-five cases that have been filed against the Mandate by for-profit parties, women have been named as plaintiffs
in almost a third.


For more information on the for-profit cases including female plaintiffs, see pages 15 – 17 of the brief.


Thomas M. Messner is a Legal Policy Fellow in the Charlotte Lozier Institute and served as a counsel on the brief Charlotte Lozier Institute and other amici submitted in the Hobby Lobby case.



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