Topics: Obamacare

Citizens United is 'very important' to Hobby Lobby's attempt to take down HHS mandate

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Beltway Confidential,Opinion,Joel Gehrke,Barack Obama,Obamacare,Justice Department,Citizens United,Contraception,HHS,Hobby Lobby

Citizens United v. Federal Election Commission, the Supreme Court's landmark campaign finance decision, will be "very important" to the court's deliberations about whether the Health and Human Services contraception mandate violates the First Amendment rights of Americans who own for-profit companies.

"We just find ourselves in kind of a precarious situation where the government is forcing us to in essence become a free abortion provider, which we don't want to be," Hobby Lobby President Steve Green told reporters Wednesday morning in his first on-the-record interview about the lawsuit. The Supreme Court will hear oral arguments in the case on March 25.

The HHS mandate, part of Obamacare, requires employers to provide free access to 20 kinds of contraception. Green explained that his company already provides 16 of the contraceptives. It's the other four, which include Plan B and Ella, that are the sticking point in this case. Under the HHS mandate, Green would have to pay a $100 fine per day for each of the employees on his company's insurance plan if Hobby Lobby does not cover those. The total amounts to $1.3 million daily.

President Obama has argued that Republicans who support Green in this lawsuit are trying to use the government to interfere with health care decisions.

"This contraception fight in particular was illuminating," he told a group of women at a campaign fundraiser in April 2012. "This is a [Republican] party that says it prides itself on being rabidly anti-regulation. These are folks who claim to believe in freedom from government interference and meddling. But it doesn't seem to bother them when it comes to women's health."

Green argued that Obama's team is the one doing the meddling. "I want to stay out of it, just like we are not required on procedural abortions to be involved; but the government is telling me I have to be involved in chemical abortions," he told reporters. "I want to stay out of it. Let that be between a woman and her doctor. But the government says I can't -- I have to freely provide these abortive products to our employees."

The Justice Department has argued (both with respect to Hobby Lobby and another challenger, Little Sisters of the Poor) that the mandate does not infringe on the religious freedom of the Green family, in part because Hobby Lobby has the option of dropping its insurance coverage altogether. That would only trigger a relatively small penalty.

Green explained why his family decided against that option. "At the time, the exchanges weren't up and we have people on our plan that have life issues that they're dealing with, and for us to drop them, at that time, would not have been an option for us either, because they could not have gotten insurance," he said. "They have pre-existing conditions that were life issues."

To rule in favor of Hobby Lobby, the Supreme Court will have to find that the for-profit company qualifies as a person, at least for purposes of the Religious Freedom Restoration Act. A group of Senate Democrats filed a brief against Hobby Lobby, arguing that RFRA does not protect the company.

"Congress passed RFRA to advance a single limited purpose: to restore the compelling-interest test to government actions that burden the free exercise of religion," the Democrats argued. "The test Congress reinstated through RFRA -- which was established and repeatedly articulated by this Court and others prior to RFRA -- extended free-exercise rights only to individuals and to religious, nonprofit organizations."

That's a "silly" argument, according to Kristina Arriaga, executive director of the Becket Fund, which represents Hobby Lobby.

"We had 107 members of Congress file amici briefs stating entirely the opposite and saying that the intent of RFRA was precisely so clear that 'person' included corporations that they did not have to specify at the time," Arriaga told reporters during the Green interview. "And legislative history on this is very, very clear."

It's not just members of Congress offering their two cents on the case. "Of the 81 briefs filed - one of the largest amicus brief filings in Supreme Court history - 56 were in support of the Hobby Lobby," as the Washington Examiner's Ashe Schow noted last week. Green believes that a poll of his employees would reflect a similar show of support.

"There's a large percent[age] that are in favor, but then there's some that believe we're imposing our religion on our employees," he said, having emphasized that he doesn't want to prevent women from having access to contraception.

Arriaga believes that the government holds an untenable position in this lawsuit, because the exemptions that have been provided to churches and certain religious groups undermine the claim that the HHS mandate provides vital services and the claim that it does not infringe on American rights to religious freedom.

In addition to the statutory question, the HHS mandate might fall afoul of constitutional jurisprudence, especially with respect to the 2010 Citizens United decision. The Examiner raised this prospect last July, in light of the fact that swing vote Justice Anthony Kennedy authored the majority opinion in that case, ruling that corporations enjoy First Amendment free speech rights.

“A combination of Citizens United and the Hobby [Lobby] case [before the 10th Circuit] tells you that corporations should be able to advance Free Exercise claims,” Jones Day attorney Michael Carvin told the Examiner when asked about the relevant constitutional law.

The Court of Appeals for the District of Columbia Circuit, ruling in favor of another challenge to the HHS mandate, suggested in November that the Supreme Court might adopt that position.

"There is an appeal to this simple reasoning; after all, the free-exercise and free-speech rights are enshrined in the same constitutional provision, separated only by a semicolon," Judge Janice Rogers Brown wrote for the majority. "Perhaps [that] constitutional arithmetic -- Citizens United plus the Free Exercise Clause equals a corporate free exercise right -- will ultimately prevail."

Arriaga said that Citizens United is "very important" to Hobby Lobby's argument. "But we're not only resting on Citizens United," she said.

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