Lawyer, Religious Freedom Advocate Analyzes HHS Hearings

Sees Reasons for Hope and Concern

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There are reasons for hope and for concern after Tuesday’s Supreme Court hearings on the HHS mandate, says Helen Alvaré, an attorney who co-authored an open letter that has collected some 41,000 signatures and claims that in matters of religious freedom and reproductive health, «women speak for themselves.»

Alvaré and the Women Speak for Themselves group filed an amicus brief in the case heard Tuesday, which brought two for-profit businesses, one owned by a Christian family and the other by a Mennonite family, to a face-off with the federal government’s mandate for contraception, sterilization and abortifacients coverage in employee health insurance. 

Alvaré, who is a professor of Law at George Mason University in Arlington, Virginia, and a consultor to the Pontifical Council for the Laity, provided a brief analysis of Tuesday’s hearings in two blog posts at the WSFT site.

She noted that «most commentators seem to read Justice Kennedy as skeptical of denying all conscience protection to for-profit corporations and their leadership.»

She added, «This is important because Justice Kennedy is widely seen as the 5th or ‘swing’ vote necessary to give Hobby Lobby and Conestoga Wood a win on this point.»

Alvaré also pointed out that «abortion was the important ghost in the room,» explaining, «Several Justices, including Justice Kennedy, pointed out to the Solicitor General that if the government won on what it claimed to be a purely contraceptive mandate — on the grounds that the government had definitively determined the essential elements of women’s health care — then there was nothing stopping the government from putting abortion into mandatory health care coverage. — Step aside from the fact that, as Justice Roberts pointed out, Hobby Lobby was arguing about certain drugs and devices being abortifacient; the Court’s question was asking about an abortion mandate from the hypothetical perspective of conceding the government’s point that emergency contraceptives and IUDs are not abortifacient.»

«This worry from the Justices bodes well for us,» Alvaré suggested.

The Hobby Lobby insurance plans have covered several types of contraception in the past. As Evangelical Christians, they are not opposed to contraception, but note that certain drugs and devices mandated by Obama’s healthcare plan are abortifacient, such as intrauterine devices, which prevent embryos from implanting in the uterus.

Alvaré said she found it disappointing that little time was given to «the government’s lack of compelling state interest in a mandate which will not accomplish the government’s stated ends of improving women’s health and ‘equalizing’ women with men.»

«When the topic did arise, briefly, it seemed that the female justices were assuming that insurance coverage of contraception is a vital interest for all women,» Alvaré said. «We don’t know what the Justices silent on this point believe, but the female justices — all of whom are on the very liberal wing of the Court — seemed to assume the importance of a state goal of free contraception.»

Alvaré also saw as important the «slippery slope arguments,» stating that «the government did not contend well with the Court’s ‘what-about-abortion’ slippery slope.»

«All in all,» she concluded, «you can see that the more liberal wing of the Court is anxious not to issue a ruling that protects employers from government decisions about what constitutes ‘fairness’ or ‘equality’ or ‘nondiscrimination’ or ‘health.’ They want to leave the government with the stronger hand, and seem suspicious of religion’s willingness to observe these principles. But there is also concern, among some of the liberal and all of the conservative Justices, to not strip citizens of religious freedom when they choose to incorporate. There is also concern that the government’s argument – ‘we have spoken about what health care means’ — has no limiting principle…. that there may be a ‘contraception’ mandate today, but that a win for the government means that there is nothing stopping them, tomorrow, from imposing an abortion, or an assisted suicide mandate.»

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