On Tuesday of this week the U.S. Supreme Court will hear oral argument in two cases to decide whether private companies can refuse to comply with a federal mandate to supply health insurance coverage for abortifacient drugs and contraceptives. The cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius, will test the strength of religious protections afforded the American people under the First Amendment and the Religious Freedom Restoration Act. Advocates for the two companies, including the Becket Fund for Religious Liberty, contend that businesses can and do enjoy religious liberty protections worthy of government respect.
Charlotte Lozier Institute (CLI) and Susan B. Anthony List agree, and we have engaged the Obama Administration and the courts with filings in both the regulatory proceeding that created the Health and Human Services (HHS) mandate at issue and the Hobby Lobby litigation itself. CLI has also published a new review of the biological processes at work in the drugs and devices at issue in Hobby Lobby and Conestoga that confirms the scientific assertion that these “contraceptive methods,” unlike many others, can and do interfere with the implantation of a fertilized ovum, thus causing early abortion. Hobby Lobby and Conestoga Wood Specialties do not object to the truly contraceptive portion of the HHS mandate on conscience or religious liberty grounds, but only to that portion of it which extends the mandate to the abortifacient class identified in its lawsuit. Other plaintiffs do object to the entirety of the mandate as an imposition on their beliefs about the moral acceptability of all the products at issue.
It is vital to remember, however, that the issue at stake in these cases is not the objective morality of any particular drug or device, nor is it the realm of reproductive health. The issue is the legality of a government mandate that forces the complicity of a private business in a practice repugnant to its values. This principle is neither conservative nor liberal in its applications. For example, suppose the government, in the interest of free trade, sanctioned a private business because it declined to do business with South Africa under apartheid.
An actual and more recent example illustrates the same point. In 2011 a U.S. drug manufacturer, Hospira of Lake Forest, Illinois, announced that it would cease producing a powerful anesthetic, sodium thiopental, because it could not assure it would not be used as part of the drug cocktail used to administer capital punishment. Hospira ceased worldwide production of the drug, which has legitimate uses, because it concluded it could not prevent its diversion for that lethal use. The absence of the drug has had significant impact on executions in states that permit capital punishment, including Virginia, and for the federal government, which also permits the death penalty. The Commonwealth of Virginia is considering the reinstatement of the electric chair as the default alternative.
Now, to be clear, no one is comparing true contraceptives to drugs used in legal injections. But one can readily imagine a scenario where government makes a law requiring a drug manufacturer to produce sodium thiopental for the state’s use on the grounds that carrying out criminal penalties is a compelling state interest. If such a proposal gives one pause, it could only be properly understood as due to deference to the moral or religious convictions of a private business. Hobby Lobby and Conestoga Wood Products believe they are owed the same deference, especially where, as is the case here, the government interest at stake – free contraceptives for everyone – can be accomplished by other means.
In debates over conscience rights, attitudes often tilt based on the specific objection or concern being weighed in the balance. But moral and religious liberties should not be weighed that way with respect to topics like contraception, manufacturing drugs for use in capital punishment, apartheid and many other matters where people disagree. The HHS mandate is not a case of whose ox is being gored by the Obama Administration; it is a matter of respecting as many oxen as possible and preserving the right to live in peace with one’s core conviction.
Chuck Donovan is the President of the Charlotte Lozier Institute.