December 26 was a fitting day for Supreme Court Justice Sonia Sotomayor to refuse judicial relief to the Hobby Lobby craft store chain, whose Christian owners object to certain requirements of the Affordable Care Act. On the calendar of Western Christianity, December 26 is St. Stephen's Day, the day that honors Christendom's first martyr.
It appears that Hobby Lobby may go to the rack on this one. The company opposes a provision in the health care legislation that requires them to pay for birth control methods that may result in abortion. Following Sotomayor's decision, Hobby Lobby issued the following statement: "The company will continue to provide health insurance to all qualified employees. To remain true to their faith, it is not their intention, as a company, to pay for abortion-inducing drugs." And the full penalty of law—experts say Hobby Lobby could be fined to the tune of $1.3 million per day—would be the death knell for the company.
Apparently, that death would be more desirable to the company's owners than potentially funding the deaths of developing human beings. The litigation centers on the requirement that employers provide insurance coverage that includes, according to the U.S. Department of Health and Human Services, "all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." Some of the government-approved "contraceptive methods" may actually work by inducing early abortion in making the uterine wall inhospitable to a fertilized egg, according to the drugs' own labeling. This—not bona fide contraception, but abortion—is what Hobby Lobby's owners object to.
So earlier this year, Hobby Lobby sued the federal government for violating their Christian owners' religious freedom. While churches and houses of worship are exempt from the regulation, and a narrow exemption was added for some nonprofit religious employers, the exemption does not cover businesses owned and run by private citizens with religious objections to abortion and/or contraception.
Justice Sotomayor ruled on the request because she handles emergency appeals from the 10th Circuit Court. In denying the appeal, Sotomayor said that Hobby Lobby failed to meet "the demanding standard for the extraordinary relief," but can continue to pursue its challenge through the lower courts.
"All they [Hobby Lobby] are asking for is a narrow exemption from the law that says they don't have to provide drugs they believe cause abortions," Hobby Lobby attorney Kyle Duncan told CNN affiliate KFOR before Sotomayor's ruling. "Our basic point is the government can't put a corporation in the position of choosing between its faith and following the law."
In support of Hobby Lobby, this past Saturday was designated Hobby Lobby Appreciation Day. Thousands of supporters were expected to shop online or at a store location on January 5 in a show of solidarity with the owners' pro-life stand.
Yet, the health care mandate treads heavily not only on reproductive matters, but even more so on religious freedom. Regardless of one's position on either abortion or national health care, this particular application of the Patient Protection and Affordable Care Act—the requirement by the federal government that a privately owned business be required to purchase goods that violate the owners' demonstrably long-held religious convictions—should trouble all who value religious freedom. No, it should trouble all who value freedom, period. (Full disclosure: My employer, Liberty University, has also filed a lawsuit against other provisions of the health care act; in addition, Liberty is one of many recipients of the charitable giving that characterizes Hobby Lobby's business practices.)
Neither national health care nor abortion is an issue close to being resolved in our nation. Now it appears that long settled, essential matters of religious freedom are being opened up to controversy again, in ways not seen since the decades of our country's founding.
First, the mandate requires private citizens who are also employers to purchase private goods (health insurance services) with private money from non-government companies. Failure to do so places them under penalty of law sufficient to deprive them of their private property. Some might argue that the mandate is no different from requiring pacifists to support war with their tax dollars, but the analogy doesn't hold. Requiring private citizens to pay for abortifacients is more akin to requiring the Amish to use their own money to purchase weapons from a private gun dealer or be forced into bankruptcy. Or kind of like forcing anti-pornography legal scholar Catharine MacKinnon to buy pornography for her law students.
Second, the contraception/abortion mandate fundamentally violates freedom of religion. It is equivalent to the old Virginia church tax that paid the Anglican vicar's salary and was deemed to violate the Virginia Statute of Religious Freedom of 1786, which disestablished the Episcopal Church as the state church and defended freedom of religion and conscience.This statute was one of the sources that Congress drew from in 1789 while drafting the Bill of Rights, which grant to citizens the free exercise of religion and prohibited Congress from abridging the freedom of religion.
What Roe v. Wade did to this country by judicial fiat in permitting abortion-on-demand is not even in the same category as requiring private citizens to violate their consciences and their most deeply held religious convictions by personally participating in acts they find immoral and unconscionable. If government regulations for running a business are such that Christians cannot own and operate a business without violating their religious beliefs, then Christians will be put out of business in this nation. I can think of little more that would change the fabric of our country than for Christians to be taken out of business unless they agree to compromise the things they hold most sacred. As blogger Denny Burk noted last week, "If this stands, what will keep this from happening to you?" If nationalized health care is the battle, then it is the soul of our freedom that constitutes the war.