Loss for Mennonite-owned firm in HHS mandate case; government says ‘abortifacient’ is theological, not scientific

July 29, 2013

In a 2-1 decision, the United States Court of Appeals for the Third Circuit ruled that Conestoga Wood Specialties Corp., a corporation wholly owned by five members of a Mennonite family, must adhere to the HHS mandate and provide its employees with contraceptives that are potentially abortifacient.

“Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything,” wrote Judge Robert Cowen, an 82-year-old Reagan appointee, in the majority opinion. “All responsibility for complying with the Mandate falls on Conestoga … It is Conestoga that must provide the funds to comply with the Mandate—not the Hahns.”

The company, which is based in Pennsylvania, employs 950.

“Our decision here is in no way intended to marginalize the Hahns’ commitment to the Mennonite faith,” Judge Cowen continued. “We accept that the Hahns sincerely believe that the termination of a fertilized embryo constitutes an intrinsic evil and a sin against God to which they are held accountable, and that it would be a sin to pay for or contribute to the use of contraceptives which may have such a result. We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself.”

Judge Cowen was joined by Judge Thomas Vanaskie, an Obama appointee.

In his 34-page dissent, Judge Kent Jordan, whom President George W. Bush appointed to the bench, scolded an Obama administration attorney for arguing that “abortifacient” is a theological, not a medical term.

At oral argument, counsel for the government insisted that “abortifacient” is a “theological term,” and that, “for federal law purposes, a device that prevents a fertilized egg from implanting in the uterus,” like Plan B and Ella, “is not an abortifacient.” There was something telling in that lecture, and not what counsel intended. One might set aside the highly questionable assertion that “abortifacient” is a “theological” and not a scientific medical term, which must come as a surprise to the editors of dictionaries that include entries like the following: “abortifacient [MED] Any agent that induces abortion.” …

Whether a fertilized egg, being acted upon by a drug or device, is aborted after implantation or is never implanted at all is not pertinent to the Hahns’ belief that a human life comes into being at conception and therefore the destruction of that entity is the taking of a human life. That belief is the point of this case, and the government is in no position to say anything meaningful about the Hahns’ perspective on when life begins.

But counsel’s comment during argument does say something meaningful about the government’s desire to avoid anything that might smack of religion in this case involving questions of religious freedom.

The government evidently would like to drain the debate of language that might indicate the depth of feeling the Hahns have about what they are being coerced to do. “Keep the conversation as dry and colorless as possible,” is the message. Don’t let anything that sounds like “abortion” come up, lest the weight of that word disturb a happily bland consideration of corporate veils and insurance contracts. Like it or not, however, big issues – life and death, personal conscience, religious devotion, the role of government, and liberty – are in play here.

“There has never before been a government policy that could be perceived as intruding on religious liberty as aggressively as the Mandate,” Judge Jordan continued. “One need not have looked past the first row of the gallery during the oral argument of this appeal, where the Hahns were seated and listening intently, to see the real human suffering occasioned by the government’s determination to either make the Hahns bury their religious scruples or watch while their business gets buried.”

The majority’s decision “rests on a cramped and confused understanding of the religious rights preserved by Congressional action and the Constitution,” he added. “The government takes us down a rabbit hole where religious rights are determined by the tax code, with non-profit corporations able to express religious sentiments while for-profit corporations and their owners are told that business is business and faith is irrelevant. Meanwhile, up on the surface, where people try to live lives of integrity and purpose, that kind of division sounds as hollow as it truly is.”

Lancaster Online, a website of three Pennsylvania newspapers, reported that the company will appeal the ruling but is complying with the mandate in order to avoid fines of $95,000 per day.

Conflicting rulings on the HHS mandate at the federal appellate level virtually guarantee that the legal debate over the HHS mandate will be taken up by the US Supreme Court.

 

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Further information:

• Conestoga Wood Specialties loses health care law challenge in federal court (Lancaster Online)
• 3rd Circuit Rejects ACA Challenge: For-Profit Corporations Cannot Engage In Religious Exercise (Religion Clause)
• Full text of decision (USCourts.gov)
• HHS mandate: court sides with Obama administration against Mennonite-owned firm (CWN, 2/12)