Lawyers representing the chain of arts and crafts stores and the federal government presented oral arguments before the 10th Circuit Court of Appeals May 23 in Denver. Hobby Lobby's lawyers asked the judges to block enforcement of the controversial provision before July 1, when a mandate that could result in a penalty of $1.3 million a day takes effect for the company.
The team of lawyers for Hobby Lobby was hopeful after the arguments.
It appeared the entire court "understands that the stakes are high" for Hobby Lobby's Christian owners, said Adele Keim, legal counsel for the Becket Fund for Religious Liberty, which is representing the company.
"We were encouraged by how engaged the entire court was during the oral argument."
Hobby Lobby filed suit last year against the portion of the 2010 health care reform law that requires employers to pay for coverage of drugs defined by the Food and Drug Administration as contraceptives, even if they can cause abortions. The Green family, which owns Hobby Lobby, does not oppose all contraceptive methods, only those that have abortion-causing qualities.
These drugs include Plan B and other "morning-after" pills, which possess a secondary, post-fertilization mechanism that can cause an abortion by preventing implantation of tiny embryos. The mandate also covers "ella," which -- in a fashion similar to the abortion drug RU 486 -- can even act after implantation to end the life of the child.
A federal judge and a three-judge panel of the 10th Circuit Court refused last year to block enforcement of the mandate, but the appeals court made the highly unusual move in late March of granting a hearing before its full panel of eight active judges.
During those May 23 arguments, the Obama administration contended Hobby Lobby's owners do not have religious freedom rights protected by the First Amendment because of the company's for-profit status. The Becket Fund, however, argued the focus of the court in the case should be elsewhere.
"We would see the central issue in this case as: Can the government command you to provide and pay for insurance coverage for drugs that you find morally objectionable?" said Keim, who served on the Becket Fund team at the oral arguments while general counsel Kyle Duncan addressed the judges. "The important thing under the Constitution is what the government is doing. The First Amendment is a limitation on government action."
The federal government, Keim told Baptist Press, "is arguing there is something special about for-profit corporations, that they don't have First Amendment rights. What we say, and what the Supreme Court has said, that when you're dealing with the First Amendment you don't look at the identity of the person who is asserting the right -- whether they're corporate or a natural person, whether they're for-profit or non-profit -- you look at the action that they're trying to take and whether the government is able to stop them from taking that action."
Hobby Lobby's owners have said they will not obey the mandate and have estimated the fines by the government could reach $1.3 million a day.
David Green, founder and chief executive officer, and other family members who own Hobby Lobby and the Christian bookstore chain Mardel, another party in the suit, are evangelical Christians. They "believe that life begins at conception and that using those drugs creates a risk of a very early abortion, and that's why are unacceptable to them," Keim said.
Sixty lawsuits have been filed against the abortion/contraception mandate, and Hobby Lobby is one of only seven for-profit companies that have failed to win an injunction or restraining order blocking enforcement of the controversial requirement while their suits proceed in court, according to the Becket Fund. Courts have granted injunctions to 19 for-profit corporations. No action has been taken in five for-profit lawsuits.
No court has so far ruled on the merits of any of the lawsuits by non-profit organizations.
The Southern Baptist Ethics & Religious Liberty Commission has signed onto five briefs defending the religious freedom of entities challenging the mandate at the appeals court level. One was in the Hobby Lobby case.
The Becket Fund, which is based in Washington, D.C., defends freedom of religion for all faith groups.
Tom Strode is Washington bureau chief for Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).
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