Access to Birth Control Is Not an Issue in the Hobby Lobby Case, Lawyer Says

Greg Scott, vice president of media communications for Alliance Defending Freedom, speaks at The Heritage Foundation in Washington, D.C. on March 25, 2014. | (Photo: The Christian Post/Sonny Hong)

WASHINGTON – A lawyer who witnessed oral arguments before the U.S. Supreme Court in the case Sebelius v. Hobby Lobby Stores Inc. reported that the federal government did not use access to birth control – a popular talking point in the media and among protestors outside the Court – as an argument for the contraceptive mandate.

"There were really no arguments by the government about lack of access to contraceptives," Adele Keim of The Becket Fund for Religious Liberty that is providing counsel to Hobby Lobby, told The Christian Post during an interview at the Heritage Foundation, a conservative think tank, on Tuesday.

"The Greens (the family that owns Hobby Lobby) have covered the pill – which is what most people think of when they think of birth control – for years in their plan, and they continue to do so," Keim explained.

In September 2012, Hobby Lobby brought the lawsuit suit against the HHS over the controversial "preventive services" mandate in the Affordable Care Act, which forces companies to include 20 types of contraceptive coverage in their healthcare plans.

Hobby Lobby refused to provide coverage for two types of IUDs and for Plan B and EllaOne, the morning-after and week-after pills, respectively.

Correcting popular misconceptions, Keim emphasized that the Greens are not Catholic, but Protestant, and said they happily provide 16 of the 20 different types of contraceptives in the mandate – just not the four drugs and devices that can allegedly cause abortions.

Adele Keim, counsel for Alliance Defending Freedom, speaks at The Heritage Foundation in Washington, D.C. on March 25, 2014. | (Photo: The Christian Post/Sonny Hong)

Keim even argued that the federal government "has left millions of women without the contraceptive benefit," in order to grant companies an exemption to keep Obama's promise: "If you like your health plan, you can keep it."

Congress created a grandfathering exemption that allows large employers to keep their most recent plans, so long as they do not fundamentally alter them, for an indefinite period of time.

Nevertheless, there are certain things even grandfathered plans must include under the ACA, Keim explained. All plans must cover children up-to age 26, and must not exclude people with pre-existing conditions.

"Those are the things that Congress said are important enough that grandfathered plans have to cover them. The contraceptive mandate was not among them," she asserted.

While Hobby Lobby employs about 16,000 people, and thus could be accused of preventing thousands of women from getting contraceptives, the government estimates that tens of millions of people – some say as high as almost 90 million – are on "grandfathered" healthcare plans.

"The government has let hundreds and hundreds of large employers like Hobby Lobby off the hook for political reasons," Keim declared. "All Hobby Lobby wants is the same break for religious reasons."

Greg Scott, vice president of media communications for Alliance Defending Freedom, the organization defending the Hahn family who own Conestoga Wood Specialties, another business that is suing the HHS over the contraceptive mandate, emphasized that, like the Greens, the Hahns are Protestant, not Catholic, and are a Mennonite Christian family.

According to Scott, "the Left has framed [the case] as this battle between religious people and women's rights." He also said media outlets are deliberately suppressing the fact that "these are real people facing real threats to their freedom."

Paul Clement, a former Solicitor General of the United States, argued the two consolidated cased before the Court Tuesday morning.

Keim praised Clement's response to Justices Elena Kagan, Sonya Sotomayor and Ruth Bader Ginsburg, who asked what he would do if a client objected to immunizations on a religious basis.

Clement argued that immunizations merit a stronger interest from the government, and therefore a company does not have the right to deny them.

"Religious Liberty is a balanced right; it's not a trump card," Keim paraphrased. "The government has a compelling interest in getting enough people immunized. It does not have a compelling interest in forcing these companies to violate their religious liberty to provide this specific type of contraceptives."

Keim further explained that during oral arguments, one overriding fact became more and more clear, in her opinion: "These are real people, with real businesses, with real faith who are being affected by this mandate."

"The government is picking and choosing religious winners and losers," Keim added, a clear violation of the First Amendment.

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