Obamacare and Religious Liberty: Mandating Carcinogens as ‘Women’s Preventive Health’

by Dorinda C. Bordlee

On January 28, 2014, a unique HHS mandate amicus brief was filed in the U.S. Supreme Court by three cancer-research institutes, 286 members of Legatus, and CatholicVote by Bioethics Defense Fund attorneys Nikolas T. Nikas and Dorinda Bordlee, and Professor Patrick T. Gillen of Ave Maria Law School.

The HHS abortifacient mandate violates the free-exercise rights of individuals and business owners like the amici Legatus members, business owners and executives who, like the owners of Hobby Lobby and Conestoga Woods, are denied their rights of religious liberty. The amicus brief demonstrates how this coercive government action fails to meet the Religious Freedom and Restoration Act requirement that it be in “furtherance” of the government’s purported compelling interest — which it asserts here is promoting women’s “preventive” health care.

The brief shows that the government’s claim that religious-liberty rights must be violated in the interest of women’s “preventive” health care is an empty and biased assertion. A robust body of widely accepted research that the government selectively ignored is surveyed in the amicus brief, showing that the mandated contraceptive drugs and devices significantly increase risks of serious disease, including HIV, stroke, and heart attack. Notably, as cited by the D.C. Circuit Court of Appeals in another HHS challenge, the brief brings the Court’s attention to the 2007 report of the World Health Organization that classifies combined oral contraceptives as “Group 1: Carcinogenic to Humans” — doubling and tripling risks of deadly breast, cervical, and liver cancers.

The research information presented to the Court was compiled in consultation with physicians and researchers of amici Breast Cancer Prevention Institute, the Abortion/Breast Cancer Coalition and the Polycarp Research Institute.

The brief was also filed on behalf of 286 members of Legatus and members of CatholicVote, who object to the mandated drugs based on the teaching reflected in Evangelium Vitae, an encyclical by Blessed Pope John Paul II: “Abortion [is a] crime[] which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection.”

Amici Legatus and CatholicVote members also object to the HHS mandate because sterilization, contraception and abortifacient drugs must be provided for free — “without cost-sharing” — to enrollees and their female dependents who have “reproductive capacity.” This means that the coercive mandate forces parents to provide free access to their minor daughters who have reached the stage of menstruation, thus undermining the Catholic moral duty of a parent to guide their children concerning the right ordering of human sexuality. In support, the brief shows how the government ignored studies establishing that free access to emergency contraceptives increases risky and uncommitted sexual behavior, thus increasing unintended pregnancy, abortion, and sexually transmitted diseases.

The Supreme Court will hear oral arguments in the case brought by Hobby Lobby and Conestoga Woods and their owners on March 25, 2014. To read the brief or learn more go here.

— Dorinda C. Bordlee is a co-founder, along with Nikolas T. Nikas, of the Bioethics Defense Fund, a public-interest legal and educational organization whose mission is to put law in the service of life.