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Feds admit abortion mandate in Hobby Lobby case

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March 27, 2014

WASHINGTON (BP) — The Obama administration's acknowledgment that its stance would require businesses to underwrite abortions without the right to a legal challenge may have been a particularly telling moment in a March 25 U.S. Supreme Court case that likely will be a landmark in religious liberty.

It seemed that way to some who oppose the government's position, and they expressed an opinion that it seemed that way to some of the justices.

The Supreme Court heard 90 minutes of oral arguments regarding the federal government's abortion/contraception mandate, which requires employers to provide abortion-causing drugs and devices for their workers. Two family owned businesses — nationwide retail chain Hobby Lobby and Pennsylvania-based Conestoga Wood Specialties — had their opportunity to present their contention that the federal rule violates free exercise of religion rights and a 1993 law protecting religious liberty.

Associate Justice Anthony Kennedy asked Solicitor General Donald Verrilli, the Obama administration's advocate, if he thought a for-profit corporation “could be forced in principle to pay for abortions.”

At first, Verrilli seemed to deny it would, saying, “[T]he law now is to the contrary.”

Kennedy countered: “But your reasoning would permit that.”

Verrilli eventually said, “Well, I think that if it were for a for-profit corporation and if such a law like that were enacted, then you're right, under our theory … the for-profit corporation wouldn't have an ability to sue.”

Lawyers for both plaintiffs cited the exchange in their assessments of oral arguments.

“The justices were extremely concerned about the idea that just because a family tries to earn a living in business they abandon their constitutional and statutory freedoms,” said Matt Bowman, senior legal counsel for Alliance Defending Freedom (ADF). “I found it interesting that the justices also were very explicitly concerned about the notion that the government's position is so extreme that if they force families and businesses to provide abortions of any kind, even presumably surgical or late-term abortions, those families would not even be able to have a day in court to object.

“[T]hose are extreme positions on the part of the government,” he told Baptist Press.

“Ultimately, what the government is doing here is forcing people to buy abortion products for other people,” said Bowman, whose organization has represented Conestoga Wood. “And that unprecedented mandate — given at the same time that the government is exempting a hundred million people from it for secular, political reasons — can't be squared with the deference that we give in our country to religious freedom itself.”

Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which has represented Hobby Lobby, said, “I think the court had a lot of very hard questions for the government. The government essentially admitted the theory that they're offering in this case would support an abortion mandate.”

After Verrilli said there is no current law requiring for-profits “to provide abortions,” Chief Justice John Roberts cited the current case.

“Isn't that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions,” Roberts told Verrilli. “I thought that's what we had before us.”

Verrilli admitted it was the belief of the business owners but said federal and state law did not support a belief that the methods constitute abortion.

The regulation issued by the U.S. Department of Health and Human Services to implement the 2010 health care law requires coverage of federally approved contraceptives, including the IUD intrauterine device and such drugs as the morning-after pill Plan B. Both the IUD and morning-after pill possess post-fertilization mechanisms that can cause abortions by preventing implantation of tiny embryos. The rule also covers “ella” which — in a fashion similar to the abortion drug RU 486 — can act even after implantation to end the life of the child.

While some conscientious objectors to the HHS rule oppose underwriting all contraceptives, Hobby Lobby and Conestoga Wood protest paying only for abortion-causing drugs.

Roberts, Kennedy and associate justices Samuel Alito, Antonin Scalia and Stephen Breyer seemed suspicious of Verrilli's arguments, but justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg repeatedly challenged Paul Clement, who represented the businesses.

Kagan told Clement, solicitor general under President George W. Bush, the corporations have another choice — they could refuse to provide health insurance and pay the $2,000 tax per employee.

“Well, just to put this in concrete terms, for Hobby Lobby, for example, the choice is between paying … a $475 million per year penalty [for refusing to abide by the mandate] and paying a $26 million per year [tax],” Clement said. “You have a government law that specifically says you must do something that violates your religion — and it's enforced with a penalty, and with all due respect I think $2,000 per employee is a penalty.”

Kagan disagreed, saying, it is “not saying you must do something that violates your religion. It's giving you a choice. You can do this thing or if this thing violates your religion you can do another thing.”

After the arguments, Hobby Lobby co-founder Barbara Green said in a written statement her family had built the business based on the Greens' Christian faith and wants “to continue to live out our faith in the way we do business.”

“We believe that no American should lose their religious freedom just because they open a family business,” she said, adding, “[W]e prayerfully await the justices' decision.”

Anthony Hahn, chief executive officer of Conestoga Wood, said his family never expected to see a time when the government “would force us to be complicit in the potential destruction of human life.”

“We didn't choose this fight,” Hahn said in a written statement after the arguments. The Hahns, Greens and others, he said, “would have been happy to just continue providing good jobs and generous healthcare benefits. But the government forced our hand. We hope and pray that the Supreme Court will uphold the religious freedom of all Americans who seek to glorify God even as they go about making a living.”

Ilyse Hogue, president of NARAL Pro-choice America and a leading supporter of the HHS mandate, told reporters outside afterward, “We will not have our rights extinguished. Our bodies are not our bosses' business.”

The plaintiffs' lawyers expressed encouragement after the arguments.

“I won't make guesses, but it felt like a good day,” Rienzi said outside the court. “It felt like they asked really good questions, and we're happy with it.”

Bowman added, “I'm hopeful. I'm a Christian, and I'm hopeful.”

Planned Parenthood Federation of America President Cecile Richards expressed optimism as an advocate for the mandate.

“It was a wonderful day I think for women, and I really believe that this court understood that women have the right to make their own decisions about their health care and their birth control, and it's not their bosses' decision,” Roberts told reporters.

Supporters of Hobby Lobby and Conestoga Wood have said religious free exercise for Americans is in the balance as the Supreme Court ponders its decision, which is expected to be issued before its term ends in late June or early July.

Russell D. Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, has described the case as “the most important religious liberty case in a generation.”

The decision “will set the tone for the next hundred years of church/state jurisprudence in this country,” he said. “If the federal government can force organizations and businesses to pave over their own consciences, to choose between being believers and being citizens, what will stop the government from imposing its will on anyone's conscience next?”

The justices heard arguments about the mandate after more than two and a half years of protests by pro-life and religious freedom advocates. Objections to the regulation failed to produce either a withdrawal from HHS or adequate conscience protections requested by religious liberty proponents.

HHS provided an exemption to the rule for churches and their auxiliaries. The administration also offered an accommodation for non-church-related religious organizations, but critics called it inadequate because it still forces such groups to provide access to the drugs through third parties.

More than 300 parties, including non-profits and for-profit corporations, have combined to file 94 lawsuits against HHS, according to the Becket Fund. The consolidated case the justices heard March 25 only involves for-profit businesses. The non-profit cases have yet to reach the high court.

The case arrived at the Supreme Court after divided opinions at the appellate level. The Third Circuit Court of Appeals in Philadelphia ruled against Conestoga Wood, saying for-profit, secular organizations “cannot engage in religious exercise.” In ruling for Hobby Lobby, however, the 10th Circuit Court in Denver rejected the Obama administration's argument that protections under the 1993 Religious Freedom Restoration Act do not extend to for-profit companies. It ruled corporations “can be 'persons' exercising religion for purposes” of the RFRA, which requires the government to have a compelling interest and to use the least narrow means to burden a person's religious exercise.

The ERLC signed onto a friend-of-the-court brief filed by the Christian Legal Society in support of Hobby Lobby and Conestoga Wood. Also among the 59 briefs supporting Hobby Lobby and/or Conestoga Wood, according to the Becket Fund, was one signed onto by Southeastern Baptist Theological Seminary; its president, Daniel Akin, and Rick Warren, pastor of Saddleback Church, a mega Southern Baptist congregation in Lake Forest, Calif.

The Green family has said it will not comply with the mandate if it loses in court. The arts and crafts retail chain of more than 600 stores could face fines totaling $1.3 million a day. The Christian bookstore chain Mardel, also owned by members of the Green family, is part of the suit as well. Both are based in Oklahoma City.

The Hahn family has been living under the mandate since its group health plan was renewed in January 2013. Refusal to abide by the mandate could cost the family an estimated $95,000 a day. Conestoga Wood is a wholesale manufacturer of kitchen cabinet parts.

Original story posted here.

Tom Strode

Tom Strode serves as a correspondent for Baptist Press. Tom and his wife, Linda, have been married since 1978. They have two children with wonderful spouses and five grandchildren. He is a graduate of the University of Missouri and Mid-America Baptist Theological Seminary. Linda and he live in Nashville, Tenn. Read More by this Author

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24