Second, the court rejected the government’s principal argument against religious objectors: “attenuation.” The government argued in both Hobby Lobby and in the non-profit cases that the connection between providing insurance plans offering abortion-inducing drugs and complicity in abortion is too “attenuated.” But the court stated that the complicity concern is a “difficult and important question of religion and moral philosophy” and that the government wrongly “[a]rrogate[es] the authority to provide a binding national answer.” Doing so, the court continued, would amount to the government finding that the Greens’ sincerely held religious objections are “flawed.” The court rightly refused to wade into this moral thicket. In the non-profit cases yet to play out, the government cannot claim that the “accommodation” it offers involves “just signing a form.”
Third, the court observed that the government itself could simply pay for the drugs and devices it seeks to promote. That fact undermines the government’s argument in the non-profit cases that the HHS Mandate is the least restrictive means to advance its goals. After Hobby Lobby, the government must explain in the non-profit cases why “[t]he most straightforward way of doing this” is not simply “for the government to assume the cost of providing” contraception directly.
The Hobby Lobby decision is a great victory for the Green Family who so courageously fought to preserve their right to run their family-owned business true to their religious convictions. And for the hundreds of remaining non-profit religious ministries who continue to resist this unfair HHS Mandate in court, victory is now three steps closer.
Hannah C. Smith twice clerked at the United States Supreme Court and is a member of the Deseret News Editorial Advisory Board. She is Senior Counsel at The Becket Fund for Religious Liberty, a public interest law firm that defends religious liberty for people of all faiths. The Becket Fund was counsel at the U.S. Supreme Court for the Hobby Lobby case and is counsel for Little Sisters of the Poor, Eternal Word Television Network and Wheaton College.
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