Orrin Hatch’s Amicus Brief in the Hobby Lobby Lawsuit: All Bark, No Bite

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Analysis Contraception

Orrin Hatch’s Amicus Brief in the Hobby Lobby Lawsuit: All Bark, No Bite

Imani Gandy

A group of 11 Republicans, led by Orrin Hatch, has filed an amicus brief in support of Hobby Lobby’s ongoing effort to wiggle its way out of complying with the provision in the ACA's birth control provision.

A group of 11 Republicans led by Sen. Orrin Hatch (R-UT), has filed an amicus brief in the Tenth Circuit Court of Appeal in support of Hobby Lobby’s ongoing effort to wiggle its way out of complying with the birth control benefit, the provision in the Affordable Care Act that requires all insurance plans to cover birth control without co-pay as part of basic preventive care. In addition to Hatch, the other ten Republican lawmakers include Sen. Daniel Coats (R-IN), Sen. Thad Cochran (R-MS), Sen. Mike Crapo (R-ID), Sen. Chuck Grassley (R-IA), Sen. James Inhofe (R-OK), Sen. Mitch McConnell (R-KY), Sen. Pat Roberts (R-KS), Sen. Richard Shelby (R-AL), Rep. Lamar Smith (R- TX), and Rep. Frank Wolf (R-VA).

The brief is a meandering exercise in venting political gripes and complaints, and is almost entirely devoid of any substantive or accurate legal discussion. Hatch and his cohorts spend most of the brief musing about the politics of the birth control benefit and the purpose of the Religious Freedom Restoration Act (RFRA) and very little space discussing the constitutionality or legality of the birth control benefit. When they do bother to discuss the constitutionality of the policy, they either get the law spectacularly wrong, as they do when they claim that a for-profit secular corporation like Hobby Lobby counts as a “person” under RFRA, or they outright ignore inquiries critical to a constitutional analysis of the birth control benefit—for instance, whether the birth control benefit substantially burdens religious freedom.

As to the question of who or what constitutes a “person” under RFRA, Hatch and the others claim that the district court incorrectly concluded that “secular for-profit corporations” “are not ‘persons’ for purposes of the RFRA.”

Although the District Court recognized that the term “person” ordinarily encompasses corporations, companies, associations, and individuals, and further recognized that nonprofit corporations qualify for protection under RFRA, the District Court nevertheless created an exemption from RFRA’s coverage for what it described as “secular, for-profit corporations” by incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” (Amicus Brief, p. 2.)

Roe is gone. The chaos is just beginning.

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They are flat-out wrong.

RFRA does not include a specific definition of “person.” In its order denying a preliminary injunction in favor of Hobby Lobby, the district court expressly noted as much. Certainly, Hobby Lobby and other for-profit secular organizations want to be counted as “persons,” and they want their status as persons to trump that of women—actual people—who should have access to a full range of health-care services without being subject to the religious whims of general business corporations that don’t serve only members of the same faith.

Certainly, Hobby Lobby argued that it should be counted as a person, but the district court declined—a fact the amicus brief signatories failed to mention.

RFRA does not include a specific definition of “person.” Plaintiffs argue that Hobby Lobby and Mardel qualify as “persons” based on the general definition included in 1 U.S.C. § 1. [1 U.S.C. § 1 is, essentially, the dictionary portion of the United States Code. -ed.] That section provides: “In determining the meaning of Any Act of Congress, unless the context indicates otherwise… the words ‘person’ and ‘whoever’ includes corporations… as well as individuals.” … The qualification “unless the context indicates otherwise,” is intended to assist the court “in the awkward case where Congress provides no particular definition, but the definition in 1 U.S.C. section 1 seems not to fit.” (District Court Preliminary Injunction Order, p. 17 (citations omitted).)

This is precisely such an “awkward case.” Congress provided no definition of “person” in RFRA, so the district court in Hobby Lobby, tasked with determining whether an examination of context indicated that Congress did not intend for corporations to be counted as “persons” under RFRA, expressly held that the term “persons” as used in RFRA (in other words, as used in context) does not include general business corporations.

“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” (District Court PI Order, p. 18.)

The argument made by the Hatch Eleven—that “Congress could have carved out such a category of unprotected ‘persons’ in RFRA itself or in a later statute, but it did not”—is, quite simply, dishonest and contrary to law.

Moreover, that they did not even attempt to argue that Citizens United granted personhood to corporations for all purposes strikes me as tacit agreement with the district court’s lengthy discussion of corporate personhood in the context of religious liberty:

Corporations have constitutional rights in some circumstances, such as the right to free speech, but the rights of corporate persons and natural persons are not coextensive. Courts have not extended all constitutional rights to all corporations. […] The purpose of the free exercise clause is “to secure religious liberty in the individual by prohibiting invasions thereof by civil authority. Churches and other religious corporations have been accorded protection under the free exercise clause because believers “exercise their religion through religious organizations.” However, Hobby Lobby and Mardel are not religious organizations. Plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion. (District PI Order, pp. 10-11 (italics in original; emphasis added).)

For all their discussion of the purpose of RFRA and the politics that led to its enactment, it’s telling that Hatch and the others ignore the district court’s clear and concise explanation of why Hobby Lobby is not a “person” for purposes of either the free exercise clause or RFRA.

As to the question of whether or not the U.S. Department of Health and Human Services (HHS) mandate violates RFRA generally, Hatch and his cohorts again fall short. They ignore the most crucial element of the RFRA inquiry, and that is whether or not the activity mandated by the government “substantially burdens” a person’s exercise of religion. They complain that the “HHS mandate places a heavy burden on religion” without discussing exactly what that purported burden is. (In a previous article about the Hobby Lobby lawsuit, I pointed out that many birth control benefit detractors attempt to read the term “substantial” out of the phrase “substantial burden,” and suggest that any burden on religion at all is a “substantial burden,” and therefore unconstitutional. This is not the case.)

The Hatch brief’s silence on the “substantial burden” element of the RFRA inquiry is deafening. This is an inquiry that must be addressed before moving on to the final two prongs of the RFRA inquiry: Is the application of the burden to the person “in furtherance of a compelling governmental interest?” And is the application of the burden to the person the “least restrictive means of furthering that compelling governmental interest?”

Or, as the district court put it:

No one questions that the Greens’ beliefs are sincerely held or that the mandate burdens, at least indirectly, the Greens’ ‘own exercise of [their] sincerely held religious beliefs. The critical question is whether the mandate imposes a ‘substantial’ burden on the Greens for purposes of RFRA. (District Court PI Order, p. 20.)

Hatch and the others don’t answer the “substantial burden” question, but the district court did: The answer is no.

[E]ven assuming, as appears to be the case with plaintiffs, that they object as a matter of religious faith to any act supporting or facilitating abortion, no matter how indirect, that does not end the issue. RFRA’s provisions do not apply to any burden on religious exercise, but rather to a “substantial” burden on that exercise.

The ACA requires that any insurance plan provided by a corporation include coverage of basic preventive health needs; employees earn or pay for these plans. The fact that, under such plans, health decisions made by a patient and doctor outside of and irrelevant to the context of the workplace might offend the religious sensibilities of the patient’s employer is not a substantial burden on religion.

The oddest gripe seems to be that the Obama administration wasn’t expansive enough in its accommodations for certain religious organizations at the outset—that the administration “ignored RFRA in formulating the narrow religious exemption at the outset and have only begun to attend to its requirements because of litigation and the reaction to public scrutiny.” (Amicus Brief, p. 14.)

Nothing in the Patient Protection and Affordable Care Act explicitly excludes the implementation of the women’s preventive health services coverage requirement from the Religious Freedom Restoration Act. RFRA therefore directly controls Defendants’ exercise of their rule making authority to implement the women’s preventive health services coverage requirement. Yet Defendants ignored RFRA in designing the mandate and began to address its requirements only in response to litigation and public opinion. (Amicus Brief, p. 9.)

To which I respond: No kidding! The formulation of the policy was done with the full input of the very same people who are now complaining about it. The administration took into account the complaints of the United States Conference of Catholic Bishops and other interest groups that have lodged their objection to the HHS mandate, even when those complaints shifted with the political winds (as they did when the Catholic Health Initiative first approved the Obama administration’s religious accommodations, then didn’t, or when the Catholic bishops lauded the compromise as a “first step,” only to decry it as “unacceptable” a day later).

Hatch and the others go on for five pages, expressing their outrage that HHS did not obtain some sort of preliminarily ruling on the birth control benefit (from whom, I don’t know—they complain that requests for an analysis of the mandate under RFRA were ignored but don’t provide any basis for the implicit claim that the Obama administration was required to provide such an analysis in advance of promulgating the birth control benefit policy), and breathlessly assert that the administration’s “refusal to address RFRA in any meaningful way (except when sued in federal court) is remarkable … [and] consistent with the way [the Obama administration] ha[s] treated the law of religious freedom from the beginning of the HHS mandate.” (Amicus Brief, p. 20.) 

Remarkable? Really? There’s nothing particularly remarkable about the Obama administration instituting a policy to address the inequality in health care—a policy favored by the majority of Catholics and those of other religious denominations, mind you—without first appeasing various political factions with ever-shifting political agendas.

According to the Hatch brief itself, there’s nothing remarkable about it. In their discussion of RFRA, the writers claim that “Congress recognized, as did various witnesses who testified in hearings on RFRA, that Government bureaucrats and agencies tend to discount the need for religion-based exemptions because they identify their own programs with the public interest.” (Amicus Brief, p. 8.) The brief goes on to quote Rev. Dean M. Kelley, counselor on religious liberty at the National Council of Churches:

“[W]hen every branch of Government and every agency likes to think that it is, by definition, expressing the public interest, and the public interest in its most compelling level, there is need for a neutral referee to judge that claim against the private claims of religious liberty.” (Amicus Brief, p. 8)

Such statements make Hatch and the others’ outrage at the Obama administration for not adequately addressing religious liberty concerns seem somewhat feigned. After all, it makes little sense for them to, on the one hand, condemn the Obama administration for ignoring RFRA, and on the other, claim that the government always ignores religious liberty concerns and that the specific purpose of RFRA is to provide a neutral referee (in other words, a court) to judge such religious liberty concerns.

So, which is it? Is the Obama administration supposed to ensure that legislative enactments or regulatory policy don’t violate RFRA in advance of promulgating them? Is it Congress’s job? Or is it the court’s job to referee such claims? That Hatch and his cohorts suggest that it is the court’s job makes their pages-long diatribe against the Obama administration bizarre.

Ultimately, there’s nothing remarkable about the administration’s behavior. It instituted health-care policy that it didn’t believe posed a threat to religious liberty—in all likelihood because the majority of Americans support access to and use contraception, and because contraception is not abortion—and as a result the administration faces lawsuits from parties who believe the health-care policy does pose such a threat. There’s nothing at all unusual or remarkable about that. That’s the way the system is designed to work—checks and balances and all that.

What is remarkable is the virulent backlash to a fairly innocuous policy about women’s health care—a backlash that is completely divorced from facts and science and that is based on a religious minority’s attempt to write into law religious, extreme, (and entirely incorrect) beliefs that Plan B and Ella are abortifacients.

They aren’t.

Also remarkable? That 11 Republican lawmakers have thrown their political weight behind a company that actually provided contraception to its employees long before the Obama administration came along and required them to do so.

That’s right: Hobby Lobby complains that the birth control benefit is “out of step with the rest of Hobby Lobby’s policies, which explicitly exclude abortion-causing contraceptive devices and pregnancy-termination drugs,” but Hobby Lobby actually provided its employees what it (incorrectly) views as abortion-causing contraception devices.

Recently after learning about the nationally prominent HHS mandate controversy, Hobby Lobby re-examined its insurance policies to ensure they continued to be consistent with its faith. During that re-examination, Hobby Lobby discovered that the formulary for its prescription drug policy included two drugs—Plan B and Ella— that could cause an abortion. Coverage of these drugs was not included knowingly or deliberately by the Green family. Such coverage is out of step with the rest of Hobby Lobby’s policies, which explicitly exclude abortion-causing contraceptive devices and pregnancy-termination drugs. Hobby Lobby therefore immediately excluded the inconsistent drugs from its policies.”

Of course, any discussion of Hobby Lobby’s shifting religious views is conspicuously absent from the amicus brief. And, of course, Hatch and the others don’t mention that scientific research shows that  Plan B and Ella prevent fertilization and can not cause abortion.

Facts and logic undercut their prevailing narrative, and they can’t have that, now can they?