In connection with Obamacare’s so-called “women’s preventive services” mandate – i.e., the diktat that employers provide health insurance coverage that includes abortifacients and contraception – the Supreme Court has agreed to review two cases, Sebelius v. Hobby Lobby Stores and Conestoga Woods Specialties Corp v. Sebelius, that raise religious liberty claims. Monday, the justices declined to review another Obamacare case, Liberty University v. Lew, that sought to press the same issue. The jutices’ denial of review in Liberty has caused some consternation among those of us hopeful that the Court will ultimately strike down the mandate. Don’t be alarmed.
Liberty is a case from the Fourth Circuit. (That court’s opinion is here.) In sum, the case was not argued as a challenge to the abortifacients/contraceptives mandate. Instead, the claimants focused on two other Obamacare mandates: the individual mandate, which requires Americans to purchase health insurance whether they want it or not; and the employer mandate, which requires employers to provide “minimum essential coverage” that includes numerous conditions and services regardless of whether employers wish to provide coverage for all of them (or employers wish to be covered for all of them).
It is true that the Liberty plaintiffs asserted that their religious beliefs barred them from “play[ing] [any] part in abortions, including [any] part in facilitating, subsidizing, easing, funding, or supporting abortions since to do so is evil and morally repugnant complicity.” But this argument was made in the context of the individual and employer mandates, not the abortifacient/contraceptive mandate, which, Jonathan Adler observes, “is a distinct legal obligation.”
Meanwhile, on June 27, 2013, the Tenth Circuit decided Hobby Lobby, one of the aforementioned cases the Supreme Court agreed to review. After hearing the case en banc, a divided court held that the claimants were likely to succeed on their motion for an injunction against enforcement of the abortifacient/contraceptive mandate. The claimants sought the injunction based on the 1993 Religious Freedom Restoration Act (RFRA).
Subsequently, in their petition to the Supreme Court, the Liberty claimants argued that the Fourth Circuit’s ruling against them conflicted with the Tenth Circuit’s ruling in Hobby Lobby. But, in truth, it did not: the Fourth Circuit in Liberty did not address the abortifacient/contraceptive mandate that is central to Hobby Lobby. In light of that, it is unsurprising that the Supreme Court did not regard Liberty as an appropriate vehicle for considering religious freedom claims against Obamacare.