The Edmond Sun

November 1, 2012

Federal judge mulls Hobby Lobby injunction request

Mark Schlachtenhaufen
The Edmond Sun

OKLAHOMA CITY — An attorney said he expects Hobby Lobby to prevail in its lawsuit seeking to preserve the Green family’s rights to carry out its mission free from government coercion.

On Sept. 12, Hobby Lobby, a Christian-owned and operated arts and crafts retailer, filed suit seeking a preliminary injunction, an exemption from a rule in the Patient Protection and Affordable Care Act that requires businesses with more than 50 employees to cover what the company calls “abortion-inducing” drugs. About 93 percent of businesses with 50-199 employees already offer coverage, according to the Obama administration.

The Affordable Care Act requires coverage of contraceptives including the birth control pill; intrauterine devices; and emergency contraceptives, aka the “morning-after pill,” which is taken within a few hours or days of sexual intercourse. The ACA does not require coverage of RU-486, aka “the abortion pill,” which causes an abortion when taken in the first few weeks of pregnancy. The “morning-after pill” prevents fertilization or ovulation, and may disrupt implantation of a fertilized egg.

A total of 38 cases representing hospitals, universities, businesses, schools and individuals have been filed over the federal “rule,” according to The Becket Fund for Religious Liberty.

Thursday morning, Kyle Duncan, general counsel for the Becket Fund, and Department of Justice attorney Michelle Bennett argued before Judge Joe Heaton during a two-hour hearing in U.S. District Court, Western District of Oklahoma.

Heaton said the case covers some “treacherous terrain” in “uncharted territory.” It raises some new and difficult problems, he said. Attorneys also spent time discussing the free exercise of religion relating to individuals versus businesses and the First Amendment.  

After quizzing the attorneys on issues including the threat of irreparable harm and if an injunction would adversely affect the public interest, Heaton said he would render a decision on a preliminary injunction as promptly as possible given time issues.

Fines for businesses with more than 50 employees not participating in the required coverage begin Jan. 1. Hobby Lobby says it could face fines of up to $1.3 million a day, $26 million a year.

Founded by David Green in 1970, Oklahoma City-based Hobby Lobby operates 524 stores with more than 13,000 full-time employees. The Green family operates Mardel, a chain of Christian bookstores, and Hobby Lobby through a management trust.

The Greens run the businesses according to their Christian faith, Duncan said. In its purpose statement the owners declare they are committed to “honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.” The family believes it is by God’s grace that Hobby Lobby has endured and prospered.

The plaintiffs maintain that levying fines on someone for following their faith is wrong, alien to American traditions of individual liberty, religious tolerance and limited government. The concept also violates federal law and the U.S. Constitution, they argue.

Because of their beliefs about unborn human life, their prescription coverage excludes contraceptive devices that can cause abortion such as IUDs and pregnancy terminating drugs, namely the “morning after pill” and the “week after pill,” Duncan said.

The issue is not about access to contraception but who pays for it, Duncan said.

The Green family cannot in good conscience knowingly offer coverage for abortion-causing drugs or devices, Duncan said. Because they are a for-profit business they are not covered by the religious employer exemption, Duncan said. And its health insurance plans are not “grandfathered” under the Affordable Care Act.

Bennett argued partially along Obama administration lines. The administration states that scientists have abundant evidence that birth control has significant health benefits for women and their families, is documented to significantly reduce health costs and is the most commonly taken drug in America by young and middle-aged women.

“Plaintiffs’ challenge rests largely on the theory that a for-profit, secular corporation established to sell art and craft supplies can claim to exercise religion and thereby avoid the reach of laws designed to regulate commercial activity. This cannot be,” the government stated in its response.

The government cited United States V. Lee, in which the Supreme Court recognized that “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding in others in that activity.”

Hobby Lobby has been planning for the 2013 insurance plan year, a complex and time-consuming process, the plaintiffs stated in their petition. The approaching mandate casts grave uncertainty on their ability to provide insurance for thousands of employees and their families in January, they contend. A lapse in coverage would be disastrous for the businesses and for the employees and their families who depend on the company’s insurance, the plaintiffs argue. | 341-2121, ext. 108