10th Circuit: Hobby Lobby May Contest Contraception Mandate

by Will Allen

The 10th Circuit Court of Appeals has ruled that arts-and-crafts retailer Hobby Lobby Stores, Inc. may contest the contraception mandate provision of the Affordable Care Act. The family-owned company (along with its sister company Mardel, a chain of Christian bookstores) is challenging the law, which requires firms to provide employee health-insurance coverage for contraceptives, as a violation of religious freedom. Of particular note is the court’s comment on the government’s defense of the mandate:

The government resists this conclusion, contending the regulations place no burden on Hobby Lobby or Mardel.  It insists the insurance coverage at issue is just another form of non-wage compensation — supposedly the equivalent of money — and therefore should not present problems under RFRA [the Religious Freedom Restoration Act of 1993].  Such reasoning cannot be squared with the Supreme Court’s holding in Thomas.  The Supreme Court emphasized that when the plaintiff drew a moral line between foundry and factory work, it was not the Court’s prerogative to determine whether the line he drew “was an unreasonable one.”  Thomas, 450 U.S. at 715.

Just so here: Hobby Lobby and Mardel have drawn a line at providing coverage for drugs or devices they consider to induce abortions, and it is not for us to question whether the line is reasonable.  This is especially so given that Hobby Lobby and Mardel stand in essentially the same position as the Amish carpenter in Lee, who objected to being forced to pay into a system that enables someone else to behave in a manner he considered immoral.  That is precisely the objection of Hobby Lobby and Mardel.  It is not the employees’ health care decisions that burden the corporations’ religious beliefs, but the government’s demand that Hobby Lobby and Mardel enable access to contraceptives that Hobby Lobby and Mardel deem morally problematic.  As the Supreme Court accepted the religious belief in Lee, so we must accept Hobby Lobby and Mardel’s beliefs.  [Lee, 455 U.S. 252]

With this ruling, the 10th Circuit reverses an earlier decision by the Colorado Court of Appeals, which declined to grant Hobby Lobby a preliminary injunction against the mandate.  The case now returns to the Oklahoma district court, which will once again consider the merits of an injunction. Cox Radio correspondent Jamie Dupree broke the news this afternoon on Twitter.