Undue burden on businesses

Posted: January 29, 2013

By Jason P. Gosselin

More than 40 lawsuits have been filed throughout the country regarding the Affordable Care Act's "contraception mandate," which requires employers to provide health insurance covering all methods of contraception and sterilization approved by the Food and Drug Administration. One of those lawsuits is Conestoga Wood Specialties v. Sebelius. Finding that the mandate was a burden but not a substantial burden on the exercise of religion, a federal court in Philadelphia recently rejected the employer's claim.

While this decision is a setback for Conestoga and its owners, their appeal prospects are promising. Business owners around the country are winning identical challenges because our Constitution and federal law protect against this very type of government intrusion on the free exercise of religion.

Conestoga is a for-profit corporation in Lancaster County that manufactures wood cabinets and specialty wood products. Together with their three sons, Norman and Elizabeth Hahn own 100 percent of the voting shares of the 950-employee company. The Hahns are devout Christians who belong to the Mennonite Church, and Conestoga's mission statement declares that the company will seek to "operate in a professional environment founded upon the highest ethical, moral, and Christian principles." Conestoga's health plan historically excluded coverage for contraception or any prescription drug that might abort a pregnancy because the Hahns, consistent with their religious beliefs, oppose certain forms of contraception.

Conestoga's health plan violates the Affordable Care Act's contraception mandate. If the Hahns failed to bring their plan into compliance by Jan. 1, 2013, the company would have been subject to a fine of $100 per day for each employee. Faced with the choice of complying with the mandate or incurring fines, Conestoga and the Hahn family filed a lawsuit, claiming the mandate burdened their exercise of religion.

While accepting that the Hahns' religious beliefs were sincerely held, the court dismissed their concerns largely because "the ultimate and deeply private choice" to use objectionable contraceptives "rests not with the Hahns, but with Conestoga's employees themselves." While this is true enough, it misses the mark: The right to refrain from religiously objectionable conduct means very little if the government can force a person to provide access and funding to facilitate for others the very conduct the person opposes.

The Supreme Court has stricken laws in the past where the burden on religion was far more attenuated than here. For example, in Sherbert v. Verner, a Seventh-day Adventist who refused to work on Saturdays filed suit when she was denied unemployment benefits. The government did not force the plaintiff to work on Saturdays against her will. Nor did the government attempt to impose a fine for refusing Saturday work. It merely restricted unemployment benefits to those who were available for suitable work when offered.

The Supreme Court in that case found that the unemployment statute at issue improperly burdened the plaintiff's exercise of religion. It forced her to choose between "the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand."

Here, the government is forcing the Hahn family to provide access and funding to objectionable forms of contraception, and if they refuse, they face fines of $100 per day for each of the company's 950 employees. That comes out to $95,000 per day, or $34.6 million per year. It would be amusing to hear someone try to defend the fairness of such a penalty on a company whose only transgression is not providing access to free birth control. Regardless, the logic of Sherbert teaches that the Hahns should not be forced to abandon a deeply held religious tenet in order to avoid a fine that will destroy their business.

We were told we needed health-care legislation because of the 40 million uninsured. Conestoga - a successful, family-owned business that provided health insurance to its employees without any prodding from Washington - wasn't even part of the problem. Sadly, rather than embrace employers like the Hahns, the Obama administration has turned potential allies into adversaries, and it has run roughshod over religious liberties in the process.

But there is some good news. For-profit businesses have prevailed in similar challenges in Colorado, Michigan, Missouri, Illinois, and the District of Columbia. This fight is far from over, and the Hahns should take some comfort in these victories as their case makes its way through the appeal process.

Jason P. Gosselin is a lawyer in Philadelphia. E-mail him at Jason.gosselin@dbr.com.

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