Ken Connor

[R]ender therefore unto Caesar the things which are Caesar's; and unto God the things that are God's (Matthew 21, KJV).

It's been 18 months since Secretary of Health and Human Services Kathleen Sebelius announced a new requirement that all U.S. employers must provide insurance coverage for birth control, including abortifacients, at no cost to their employees. As lawsuits against the infamous HHS mandate increase in number, it's looking more and more likely that the constitutionality of the Patient Protection and Affordable Care Act will be reviewed by the Supreme Court.

One of the businesses resisting the mandate on the grounds of religious liberty has filed a petition to have the case reviewed by the Supreme Court after both the 3rd and the 6th Circuits for the U.S. Court of Appeals ruled that for-profit entities are not "people" and thus cannot exercise religious liberty. From the Heritage Foundation:

"Conestoga is a kitchen cabinet manufacturer in Pennsylvania employing 950 individuals. Its owners, the Hahns, run their family business according to their Mennonite faith, including offering an employee health plan aligned with those values. Under the Obamacare mandate, however, the Hahns are forced to provide and pay for coverage of abortion-inducing drugs—despite the family's religious objections. Conestoga Wood could face fines of up to $95,000 per day for sticking to their deeply held beliefs and not complying with the mandate. The Hahns sued to stop the implementation of the mandate, arguing that it violates the Free Exercise Clause of the First Amendment as well as the Religious Freedom Restoration Act (RFRA), which requires that government action "not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." RFRA does not define who and what entities qualify as a "person"—and that is precisely the question before the Supreme Court: Does a for-profit business count as a "person" under RFRA and the Free Exercise Clause?

In July, the U.S. Court of Appeals for the Third Circuit denied the Hahns' request for a temporary halt to the mandate, finding that for-profit businesses are "artificial being[s], invisible, intangible, and existing only in contemplation of law" and could not exercise "an inherently 'human' right'" like the free exercise of religion. Earlier this week, the Sixth Circuit agreed."


Ken Connor

Ken Connor is Chairman of the Center for a Just Society in Washington, DC.