The 10th U.S. Circuit Court of Appeals in Denver ruled recently that an Oklahoma City-based company, Hobby Lobby, could proceed with a lawsuit challenging a U.S. Department of Health and Human Services mandate linked to Obamacare. The mandate requires companies to provide insurance covering birth control. Hobby Lobby’s owners contend the mandate violates their religious liberty. Months before appellate judges handed down their decision, the John Locke Foundation and Federalist Society listened to a presentation on Obamacare and religious liberty from Eric Kniffin, legal counsel for the Becket Fund for Religious Liberty, which has worked with Hobby Lobby. Kniffin discussed the health care law’s impact on religious liberty with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)

Kokai: So we have heard a lot about Obamacare in many respects, from its supporters and from its opponents. One of the key issues that perhaps hasn’t gotten the top headline attention is the impact on religious liberty. But as you mentioned in your presentation, there are some big religious liberty implications from this law. What are they?

Kniffin: The focus of the religious liberty concerns with the Affordable Care Act center on what the act requires group health care plans to include as preventative services for women. Most objectionable is the aspect of the law that requires plans to include emergency contraceptives, which many religious organizations believe are abortifacients.

Kokai: And from what I understand, and having just read some of the basic stories about it, the law is telling not just a church, but any group or entity that’s affiliated with these religious groups, that they’re going to have to do these things that they say their consciences don’t allow them to do.

Kniffin: Employers are required under the Affordable Care Act to provide their employees with group health plans, and those group health care plans must include everything that the government requires. And so the law, in effect, requires all employers to provide their employees with what many believe are abortion-causing drugs. Now, the law does recognize that there are religious liberty problems with this, and it does so by providing an exemption for certain religious employers, but the exemption is so narrow, it is unprecedented in federal law.

And so what the government has done is, it says, “We will provide you an exemption, but only if you meet all four aspects of this test for religious employers.” You must have as your purpose to inculcate religious values. You must primarily employ and primarily serve people who share your faith. And you must be defined as a church or a religious order under the tax code. And that is a very small portion of what most people would recognize as religious organizations.

It cuts out for-profit organizations altogether. And it also cuts out a wide swath of social service organizations and other religious nonprofits. And it even leaves out churches if those churches understand their mission to largely consist of serving their communities.

Kokai: Now people could just sit back and take this as the law, but as you mentioned in your presentation, there are a number of lawsuits, including some involving the Becket Fund for Religious Liberty, that are challenging this law. Tell us how that’s proceeding.

Kniffin: Sure. There are, I think, 41 lawsuits … with over a hundred different plaintiffs — Catholic, evangelical, for-profit, nonprofit, churches, otherwise. All of these lawsuits are summarized on our website — the Becket Fund has a website — HHS Mandate Information Central. You can find out on our website, That gives a good overview of these lawsuits and where they are. So there are a wide array of lawsuits out there. Briefly, the lawsuits can be broken down into the for-profit clients and the nonprofit clients.

The for-profit clients, the government has said, categorically, if you are organized as a for-profit institution, you have no religious liberty rights. So far, courts have almost universally rejected that claim. So these lawsuits are ongoing. Nothing is settled yet, but we’ve been making good headway there.

On the nonprofit side, the government has been avoiding the substance of these arguments by sticking to some procedural argument saying that the lawsuits have been filed too soon because the government has promised to provide a new rule that’s going to, it says, help fix the situation. So the nonprofit lawsuits are sort of stuck in those procedural arguments, but on the for-profit side, we’ve been able to get to the substance, and so far have made great progress.

Kokai: Now we aren’t going to have time to get into all the details of the arguments against the law, but tell us, if you would, some of the highlights, the keys of your argument as to why what the administration is doing is not constitutional and is infringing on all of these organizations’ rights.

Kniffin: The primary legal argument that we’re advancing in these cases is under a 1993 law called the Religious Freedom Restoration Act. And under that law, once an organization shows that its religious exercise is substantially burdened by a law, then it is incumbent upon the government to show why the government’s law is advancing a compelling interest and why the government is doing so in a narrowly tailored way. This is what we lawyers call the strict scrutiny test.

And so it really … puts the focus on the government. It really has to justify what it’s doing. In this case, we’re seeing clearly, by all accounts, these are religious employers who say that they have a substantial problem with being forced to fund and to provide for their employees what they believe are abortion-causing drugs. They say, “We don’t want to make available to our employees drugs that we believe cause abortions.” So that’s straightforward enough.

The rest of the case, then, has to do with what the government is doing and how the government is going about it. So to leave aside the issue about whether providing access to a contraceptive is a compelling governmental interest, or, in this case, narrowly expanding interest, because access is already very broad, the more difficult part for the government is saying why it has to advance its argument this way. And so the government is already committed to close to $1 billion every year and to providing women with free or almost free family planning services through Title IX clinics and various grants, through Medicaid and the like.

And so, given this huge infrastructure, why is the government, in order to achieve this objective, riding herd on the backs of religious organizations who are having a problem with this? Surely there are easier ways that avoid these constitutional problems for the government to advance its interest. And so that’s, in short, the legal argument against the mandate.

Kokai: Why is it so important to fight a law like this and to advance the idea that religious liberty is important and should withstand this law?

Kniffin: Sure. Well, one is to protect the rights of these religious entities in this instance, to protect their conscience, to protect them from being forced by the government to do this. And so to understand that, really, these lawsuits are defensive in nature. These entities are coming to court saying, “We need help. We need relief because the government is forcing us to do something that we simply can’t do, under penalty of severe fines.” But more largely, this lawsuit is about whether or not the government can get away with a ridiculously narrow definition of religious employers and, by doing so, restricting which entities have the protection of the First Amendment.