Currently, there are 42 lawsuits across the country that are challenging the Obama administration’s contraceptive-abortifacient mandate as a violation of Christian conscience, making 2013 a particularly important year for religious liberty. For good or for ill, these cases will play an unusually important role in defining our national commitment to religious liberty
To better understand the implications of the mandate, TGC interviewed Daniel Blomberg, the legal counsel for the Becket Fund for Religious Liberty. Blomberg, the son of an ordained evangelical minister, earned a degree in Bible from Columbia International University before graduating magna cum laude from the University of South Carolina School of Law. Before joining Becket, he clerked for Chief Judge Alice M. Batchelder of the U.S. Court of Appeals for the Sixth Circuit and, before that, served as litigation counsel with Alliance Defending Freedom.
What is the mission and purpose of the Becket Fund for Religious Liberty?
The Becket Fund is a non-profit, public-interest institute that protects the free expression of all faiths. We exist to protect people as they exercise their right and duty to relate to God as their conscience leads. And we do so for all religions: at the Becket Fund, we like to say that we’ve defended to religious rights of people from “A to Z,” from Anglicans to Zoroastrians. We want to help realize a world where religious freedom is respected as a fundamental human right that all are entitled to enjoy and exercise.
Why should evangelicals care about the HHS Mandate?
On one level, simply because other evangelicals are being harmed by the HHS Mandate. Wheaton College, Colorado Christian University, and Hobby Lobby (which is owned by David Green, a devout evangelical)—among others—have gone to court so that they won’t have to do what the Mandate says they must do: provide insurance coverage for abortion-inducing drugs like ella and Plan B. As institutions, they share the evangelical commitment to cherishing the God-given worth of human beings from the earliest stages of their lives. But the Mandate coerces them to provide life-taking drugs, on pain of crushing fines—fines that would shut them down. Thus, evangelicals should care about the HHS Mandate because it coerces fellow evangelicals to violate their duty to obey God and protect human life.
On another level, evangelicals should care because of the unprecedented nature of the HHS Mandate’s threat. Our nation’s Founders made religious liberty our first political liberty because they recognized that it was the foundational political liberty. As recently as last January, in the Hosanna-Tabor Evangelical Lutheran Church case, members of the U.S. Supreme Court affirmed that religious groups are the critical shields between the individual and the power of the State, between liberty and tyranny. If the State can broadly force individuals and private institutions to directly violate core religious beliefs, then liberty itself—not just religious liberty—is threatened. For that reason, evangelicals should support the conscience claims of, for instance, Catholic institutions who oppose the Mandate both on sanctity-of-life grounds and because of the Mandate’s contraception-coverage requirement. Even though most evangelicals do not agree with Catholic doctrine on contraception, they can and should support the claims of Catholic individuals and institutions to freedom of conscience. Anything less signals a weak commitment to both religious liberty and personal liberty.
Does the Administration’s new proposed change to the Mandate solve the religious liberty problem?
No. Just two weeks ago, the Administration issued a proposal that altered some aspects of the Mandate while leaving most of the problems unchanged. First of all, it’s just a proposal and has no force of law, unlike the Mandate, which is law (albeit one created via bureaucratic regulation instead of congressional legislation). Further, it offers absolutely nothing to evangelical business owners like David Green, who is left with a choice between violating his faith or paying around $1 million dollars per day for the privilege of doing business without covering abortion drugs. That shows a stunning coldness to the religious liberty of family businesses, and it’s all the more brazen given how poorly the Mandate is doing in federal court. There are more than a dozen lawsuits filed on behalf of family businesses, and over 70% of the decisions so far have supported the businesses.
Religious nonprofits such as Wheaton College and Colorado Christian University also have little to cheer about. Along with hundreds of thousands of other Americans, they asked the Administration for a complete exemption from the Mandate. Despite having over a year to come up with a solution, all that the Administration offered two weeks ago was an 80-page “accommodation” that creates a new insurance bureaucracy that appears both unworkable and, for many, unlikely to provide sufficient protection for conscience. The basic idea of the “accommodation” is that a religious nonprofit’s insurer will automatically provide abortion-drug (and contraceptive) coverage instead of the religious nonprofit having to do so, and that the government will provide a complicated reimbursement to the insurer for the coverage. If that sounds unclear, it’s because the proposal is unclear. And it is even worse for self-insured nonprofits like Wheaton College, who don’t have an external insurer. For them, there’s no proposed rule, just a handful of questionable suggestions offered for public comment.
Finally, for the extraordinarily narrow religious exemption that is currently in the Mandate, the Administration proposes removing the offensive language that exempts only those religious organizations that minister to their own members. But that’s hardly much of an improvement given that the Administration says that it does not intend the new exemption to be any broader than the old one. Worse, while the existing exemption allows exempt ministries to provide insurance for non-exempt affiliated organizations (such as a church covering its related daycare ministry), the new exemption would remove that umbrella protection.
In a way, the whole proposal reminds me of the old Calvin and Hobbes cartoon where Calvin seeks to soften his mother up by first asking if he can set fire to his mattress and then if he can ride his tricycle on the roof; after getting the expected “No, Calvin” to both requests, he makes his move and asks if he can have a cookie. When she calmly answers “No, Calvin” again, Calvin realizes “she’s on to me.” By comparison, the Administration started its attack on religious liberty so outrageously that its proposal could seem, at least to some, almost reasonable by comparison. But the answer to the question “Is this infringement on religious liberty okay?” is still “No.”
What is the current status of the lawsuits the Becket Fund is defending?
All of the lawsuits remain unchanged by the Administration’s proposal. The lawsuits that, like the Hobby Lobby case, are pending remain pending; the lawsuits that, like the Wheaton College case, are stayed remain stayed. And our goal remains unchanged: obtaining an exemption for the religious objectors. When people have legitimate conscience objections, our nation has a proud history of exempting them out of respect for their consciences; that’s what should happen here. We welcome the Administration to make that happen and, if they won’t, we will continue asking federal courts to do so.
Do you think it is likely this issue will be taken up by the Supreme Court? And if so, how do you think they’ll decide?
The issue certainly appears to be headed to the Supreme Court, and the cases on behalf of businesses like Hobby Lobby will most likely be the first ones to arrive there. While I can’t predict how the Court would ultimately come down on the issue, the overwhelming success of businesses in lower federal courts is definitely a good sign.
The Obama administration has opened a comment period on its proposed rule that lasts until April 8. Anyone who wishes to comment can, and Planned Parenthood has already started seeking comments that are favorable to the proposal. You can let the Administration know what you think here by typing in your comment or uploading a document that you’ve already saved which contains your comment.