Aleteia

A Behind-the-Scenes Look at Hobby Lobby Legal Preparation

Mark Stricherz
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Attorneys discuss evolving case and its implications for non-profits.

WASHINGTON — Minutes after the Supreme Court announced its decision in Burwell v. Hobby Lobby, Carrie Severino found herself being interviewed a few feet beyond the court’s white marble steps on national television. Severino is the chief counsel and policy director for the Judicial Crisis Network, and she acts as if fellow  pro-lifers need to be careful of the words they use.

"This is a narrowly tailored decision. The court said you can’t force people to violate their religious freedom," Severino told reporter Terry Moran of ABC News.

Yet Severino, who filed a friend-of-the-court brief in the case, told Aleteia the ruling could have broader implications for religious believers. The decision may allow sole proprietors to refuse to provide to their employees the abortifacient and sterilization procedures that the Affordable Care Act requires of health-insurance plans. "I’m not sure how it’s going to affect those. Certainly it creates a great opportunity to do just that," Severino said.

Lori Windham, a lead attorney in the case for the Becket Fund for Religious Liberty, struck a note similar to that of Severino. "The case is limited to family-owned corporations," Windham said in an interview outside the Supreme Court Monday morning.

Windham and Severino’s use of the religious press to encourage religious businesses to apply for an exemption from Obamacare’s controversial mandate was no accident. Their words typified the prudential, hard-fought nature of the victory for supporters of the decision.

One after another female pro-life speaker from Americans United for Life, Students for Life, the Catholic Association, and Young Americans for Freedom, stepped up to a dark wooden podium to hail the court’s ruling in front of a few hundred sympathizers and scores of opponents on First Street SE Monday morning. One after another female attorney who represented or supported the victors in the case addressed the media. Paul D. Clement, the male attorney who argued the case for the plaintiffs before the nine justices, was not available for interviews. Mark Rienzi, a senior legal counsel to the Becket Fund, was slightly less scarce to reporters Monday.

"This is one of the most significant pro-life victories for a generation," Cathy Cleaver Ruse, senior counsel for legal studies at the Family Research Council, told supporters waving professionally-made placards. "This decision said the Obama mandate went too far. This is a day for women to celebrate! Thank you, Supreme Court, for standing up for women in business."

The plaintiffs in the case were Hobby Lobby, an Oklahoma-based arts-and-crafts retail store, and Conestoga Wood Specialties, a Pennsylvania-based cabinet making firm. Both are owned by religiously devout families. 

They argued they should not have to provide to their employees four government-mandated, abortifacient drugs—the morning-after pill, the week-after pill, Plan B emergency contraception, and intrauterine devices—that can kill a tiny unborn child after conception has occurred. The high court’s ruling allows family-owned corporations to not provide those drugs and procedures to their employees.

The defendant in the case was Sylvia Burwell, the secretary of the Department of Health and Human Services, who succeeded the woman who oversaw implementation of the policy, Kathleen Sebelius. Donald Verrilli, the solicitor general of the U.S., argued that allowing some organizations to opt out of the contraception mandate jeopardized women’s health. The government’s case equated artificial birth control to health vaccinations.

Socially liberal protestors agreed. "Ho ho, hey hey, birth control is here to stay!" young activists chanted as the last of the female pro-life speakers addressed the crowd in front of the court.

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