On Monday, the Supreme Court reversed a 7th Circuit case concerning the HHS abortion-pill mandate. In so doing, it may also have reversed the narrative of the Obama administration’s defenders.
Many people naturally thought that when the Court recognized the religious freedom of family businesses in the Hobby Lobby/Conestoga case last summer, then by extension, religious schools and charities would also be exempt. But not in this presidency.
The Obama administration has told non-profit religious groups (like the University of Notre Dame in yesterday’s case) that they must provide a health plan under which their employees get abortifacients and contraception. Under this so-called “accommodation,” religious consciences are supposed to be assuaged by a regulatory fiction: The government simply declares that the religious group is not exactly the one providing the morally abhorrent coverage — the religious group’s hired insurance administrator is forced to do it.
Most morally scrupulous people will not be satisfied by being told they must hire a hit man. So Notre Dame and many other groups sued, asking that their own health-insurance arrangements not be involved in abortion pills or contraception at all. Let the government provide the coverage on its own.
But the Obama administration doubled down on this idea, insisting that the Hobby Lobby/Conestoga decision itself gave its imprimatur to its accommodation — even though the Supreme Court declared it was not ruling on the accommodation. Using this theme, the government is losing in about 30 cases, including two temporary injunctions from the Supreme Court itself that sidestepped the accommodation. But the government has won four decisions at the appellate level.
The first of those appellate wins came a year ago from the 7th Circuit’s Judge Richard Posner. He wrote a scathing opinion telling Notre Dame to accept the fiction that it is not providing contraception coverage, even though the coverage happens through its own health plan, its plan contract, and the plan administrator it hired.
That was the cert petition the Supreme Court considered today. If the Obama administration and its apologists were correct, the court should have denied that petition. Not only did Judge Posner use exactly the conscience shell-game rationale that the Obama administration is promoting, but there is no conflict among the circuits on that issue (yet).
Apparently the Supreme Court takes a different view. It granted, vacated, and remanded (“GVR’d”) Notre Dame’s cert petition, instructing the 7th Circuit to redo its decision in light of Hobby Lobby/Conestoga.
This GVR upends the government’s legal view. If Hobby Lobby/Conestoga blessed the accommodation, there would have been no need to vacate the Judge Posner’s decision upholding the accommodation. If Hobby Lobby/Conestoga means the government can force organizations to enter an arrangement providing morally objectionable products, and avoid religious freedom protections simply by telling the groups that their consciences are clear, then there would be no reason to reconsider the accommodation in light of the Supreme Court’s decision.
Instead, today’s GVR suggests the opposite: that Hobby Lobby/Conestoga and the even more recent Holt v. Hobbs case stand for the idea that if a religious group must choose between doing something it considers morally objectionable or paying a significant fine, then by definition the group’s religious exercise is substantially burdened, and the federal government must justify its burden under the Religious Freedom Restoration Act.
The abortion-pill mandate’s so-called accommodation doesn’t exempt conscience, it tries to redefine conscience and then coerce it. The Supreme Court took another step towards recognizing that fact.
— Matt Bowman is senior legal counsel with Alliance Defending Freedom, which represents numerous clients challenging the Obama administration’s abortion-pill mandate.