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And let there be birth control: The Hobby Lobby ruling and how it will affect Stormans v. Wiesman

Crafting retail giant Hobby Lobby is spreading the gospel of cheesy merchandise and restrictive reproductive healthcare policies through the United States, and next year Olympia will be home to the newest of these knitting needle emporiums. Real estate developer Merlone-Geier has applied for a renovation permit for the old Kmart at 4141 Martin Way, anticipating Hobby Lobby as their major tenant, along with space for another eight retail tenants. Hobby Lobby spokesperson Vincent Parker confirmed that the company is “hoping for a mid-summer of 2015 opening.”

Virtually unheard of in this region a few years ago, the Hobby Lobby retail chain of 628 stores has been expanding rapidly, with 33 stores opened in 2012, 40 in 2013, and 70 scheduled for opening in 2014. At this time, there is no evidence that denying full birth control coverage to your female employees is bad for business.

Hobby Lobby v. Burwell
On June 30, 2014, the Supreme Court decided in favor of Hobby Lobby in the case of Hobby Lobby v. Burwell, ruling that the contraception mandate of the Affordable Care Act (ACA) violated the Restoration of Religious Freedom Act (RFRA). This is a landmark decision in a number of ways: it establishes corporations as entities capable of holding religious beliefs, it sets a precedent for other closely held corporations to wriggle out of providing contraception to their employees, and opens the door to corporations making other demands for religious exemptions from federal laws.

Hobby Lobby claimed in its original complaint that “the Mandate can be interpreted as nothing other than a deliberate attack on the religious beliefs of the Greens and millions of other Americans.” Nonetheless, the Supreme Court decided the case not on constitutional grounds, but statutory ones, ultimately finding that the contraception mandate violates RFRA. The RFRA is a 1993 congressional act that prohibits the federal government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.

Hobby Lobby’s lawsuit did not take issue with all forms of contraception. It focused on intrauterine devices (IUDs) and the emergency contraception medications, Plan B and Ella, which the company claimed violated its religious beliefs as “the Green family’s religious beliefs forbid them from providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices.” Many critics have questioned the sincerity of this belief, since Hobby Lobby buys most of its merchandise from China, a country with extremely restrictive family planning policies, sometimes (although unofficially) extending to forced abortion. In addition, Mother Jones magazine reported in April that the company “spent millions of dollars on an employee retirement plan that invested in the manufacturers of the same contraceptive products the firm’s owners cite in their lawsuit.” As recently as 2012, Hobby Lobby’s health plan covered Plan B and Ella, the drugs which caused so much offense after the ACA required they be covered. While accounts vary slightly on how the stores’ owners, Oklahoma billionaire David Green and his wife Barbara travelled the path from covering emergency contraception to opposing it on religious grounds in the highest court in the nation, there is incontrovertible proof that these medications were previously included in the company’s health plan. In Hobby Lobby’s original complaint, the plaintiffs state that “after learning about the nationally prominent HHS mandate controversy, Hobby Lobby re-examined its insurance policies to ensure they continued to be consistent with its faith. During that re-examination, Hobby Lobby discovered that the… policy included two drugs—Plan B and Ella—that could cause an abortion.” The Wall Street Journal, however, reports that Hobby Lobby’s owners became aware that their plan covered emergency contraception when a lawyer from the Becket Fund for Religious Liberty (a right-wing public interest law firm) called Hobby Lobby’s general counsel to persuade them to sue the federal government. The Becket Fund served as attorneys for the plaintiffs and prepared the complaint.

The Becket Fund is a non-profit organization that states as its mission “preserving the free expression of all faiths.” However, this free expression seems to refer chiefly to the freedom to control other people’s sexual behavior; the bulk of its activities in recent years has involved providing litigation support to Christians who feel their religious liberty is threatened by LBGT rights and the reproductive rights of women. High-profile cases have included United States v. Windsor (the Defense of Marriage Act), and Hollingsworth v. Perry (regarding California’s Proposition 8). According to Political Research Associates, the organization’s leadership and donor base is made up almost exclusively of conservative Roman Catholics. While enjoying a tax-exempt status, it has engaged in a sustained, and ultimately very successful assault on the ACA. Indeed, the Becket Fund’s dismantling of the contraception mandate of the ACA via the Hobby Lobby lawsuit has proven to be far more damaging than the repeated efforts to repeal the act in the House of Representatives.

The Center for Inquiry (CFI), a non-profit organization which advocates for a secular society, filed an amicus brief in the Hobby Lobby case, asserting that “this case does not involve a burden on religious liberty, but rather a complaint about government policy.” In its brief, CFI contends that making available a third party insurance program where employees may spend their own wages and benefits, “which may, at an indeterminate future date, result in a doctor issuing and a pharmacist filling, a prescription for contraception methods opposed by the corporation’s owners…” creates an insignificant burden with respect to religious exercise. Indeed, Hobby Lobby provided insurance that allowed for such methods for years without concern or expulsion from the church where they worship. Although the Supreme Court did not question the sincerity of Hobby Lobby’s religious claim, many elements of the situation contrive to create the appearance that the case has less to do with a reverence for life than a desire to use the legal system to attack Obamacare.

Far reaching effects of Hobby Lobby v. Burwell
The day after the Supreme Court decision was published in Hobby Lobby v. Burwell, SCOTUS issued orders in six other cases involving business owners who objected to birth control mandated under the ACA: in three cases where the lower courts had found in favor of business owners seeking to deny preventive healthcare services to employees, review was denied; in three other cases, SCOTUS ordered the Appeals courts to reconsider decisions previously reached in which the lower courts upheld the employees’ rights to all forms of preventive services provided under the mandate. It should be noted that while the Hobby Lobby case involved just some forms of birth control, the decision impacts cases that often involve all forms of contraception. The Hobby Lobby ruling has essentially destroyed the contraception mandate, and employers who wish to opt out of covering birth control are now virtually assured the ability to do so.

The possibility of a ruling in Hobby Lobby’s favor by the five male Catholic justices of the Supreme Court was anticipated before it was published, and one potential impact that has been anticipated regards the lawsuit involving the owner of Ralph’s and Bayview supermarkets. In 2007, Stormans, Inc., along with two evangelical Christian pharmacists, sued the state of Washington, claiming that “the plaintiffs’ rights of conscience are violated by regulations adopted by the Board of Pharmacy.” The regulations to which the plaintiffs objected had arisen in response to a number of incidents in which pharmacists had refused to dispense emergency contraception on “moral grounds.” The regulations had been carefully crafted to provide accommodation to pharmacists with a religious or moral objection to this type of birth control, by requiring not pharmacists, but pharmacies to “deliver lawfully prescribed drugs or devices… and drugs approved… for restricted distribution by pharmacies…. to patients in a timely manner consistent with reasonable expectations for filling the prescription.” Because the regulations impose this duty on pharmacies rather than pharmacists, they do not pose an unfair burden upon pharmacists with conscientious objections to a particular drug or device; the pharmacy simply has to ensure that someone without such qualms is available to dispense at the same time so that the patients’ needs for timely access to all drugs are provided for.

This accommodation was not satisfactory to Stormans, Inc. and the two pharmacists who joined with them in the suit, who claimed the regulations deprived them of their right to “the free exercise of religion under the First Amendment.” Stormans v. Selecky, which has since become Stormans v. Wiesman, has been decided in favor of the plaintiffs in Federal Court twice, and appealed by the state twice over the years (see box). Oral argument in the Ninth Circuit Court of Appeals was scheduled for December of 2013, but was postponed pending the outcome of the Hobby Lobby case. When the decision in Hobby Lobby was announced, the parties in Stormans v. Wiesman were immediately ordered to submit supplemental briefs to the court of appeals, on the effect, if any, on the issues confronting the court. Supplemental briefs were filed in late July, and the oral argument was recently scheduled for November 20 in Portland, Oregon.

Meet the Stormans’ lawyers
The Alliance Defending Freedom (ADF), formerly known as the Alliance Defense Fund), has provided litigation support to the Stormans case since it was initially filed in 2007. Funded in large part by the National Christian Charitable Foundation, which in turn receives much of its funding from Hobby Lobby executives and subsidiaries, the ADF has its fingers in a lot of nasty pies. The ADF was behind McCullen v. Coakley, the case that successfully challenged the constitutionality of buffer zones around abortion clinics. The ADF also filed a federal lawsuit against a family planning clinic in Tampa, Florida when it lost interest in hiring a nurse, Sara Hellwege upon learning that she objected to prescribing hormonal birth control. Since Hellwege lives in Georgia, and is not even licensed in Florida, it is easy to imagine that she blanketed the South with resumes until she received a response that the ADF could use to claim religious discrimination. While there is no direct evidence that Hellwege or the ADF contacted multiple family planning centers looking for a lawsuit, the ADF has used similar tactics before; after gay marriage became legal in Minnesota and Virginia, the ADF sent a memo to registrars in both states, encouraging them to refuse to issue marriage licenses to same sex couples, and inviting them to contact the group for “legal advice in resolving their conflict,” should any arise.

The ADF has worked as assiduously to undermine LGBT rights and criminalize homosexuality as it has to limit women’s reproductive rights. According to the Southern Poverty Law Center, the group is increasingly committed to international anti-LGBT work and lends legal support to groups which defend statutes that criminalize gay sex as well as laws that punish LGBT advocacy. Benjamin Bull, the executive director of ADF Global, has endorsed the criminalization of homosexuality in India, and has traveled to Russia to learn more about how to ban “gay propaganda..” Efforts to suppress gay rights at home have included trying to take Elaine Photo v. Willock, the case in which a photographer refused to photograph a same sex commitment ceremony, to the Supreme Court, and several lawsuits trying to challenge or reverse marriage equality at the state level, along with trying to exclude LGBT kids from the Boy Scouts.

The lead counsel in the Stormans case, Kristen Waggoner, recently took umbrage with Obama when he signed an executive order banning discrimination by federal contractors against LGBT individuals. According to Kristen Waggoner, this effort to end discrimination is really all about robbing Christians of their freedom; she declared it ”the latest example illustrating that the very government that the Constitution charges with protecting religious freedom is now the primary threat to religious freedom. The administration has brazenly bypassed Congress and declared that the only religious non-profit organizations it will do business with are those willing to line up with the administration’s doctrine and theology on sexual behavior.”

Waggoner is the daughter of Clint Behrends, the superintendent of Cedar Park Christian schools, and is herself the product of Christian schools: the Columbia Heights Christian Academy, Northwest (not to be confused with the non-sectarian Northwestern) University, and the Regent University School of Law. The Cedar Park Church, led by anti-gay zealot Joe Fuiten (GLAAD reports he has been known to attribute homosexuality to demonic possession), appears to be Waggoner’s spiritual home. Her husband Benjamin Waggoner has done legal work for Cedar Park, Waggoner herself has served as a deacon, and Fuiten has praised Waggoner and the ADF’s legal cases from the pulpit.

The brief assessing the impact on Stormans v. Wiesman of the Hobby Lobby Decision, lists attorneys from both the ADF and the Becket Fund as counsel representing the plaintiffs, including Stormans, Inc., owner of Ralph’s and Bayview.

How does Hobby Lobby impact the Stormans lawsuit?
The day the Hobby Lobby decision was announced, the plaintiffs, defendants and defendant-intervenors in Stormans v. Wiesman case were ordered to submit supplemental briefs within 28 days, assessing how the Supreme Court Decision affected the issues in the case. Both the state and the defendant intervenors provided straightforward assessments: Since the Hobby Lobby case was decided under the RFRA which applies only to federal laws, and the pharmacy regulations are state rules, there is no effect. According to Alison Dempsey-Hall of Attorney General Robert Ferguson’s office, “The U.S. Supreme Court decided the Hobby Lobby case based on a federal law that applies only to other federal laws, i.e. [RFRA]. Washington’s ‘access to medication’ rule is a state law, so [RFRA] does not apply. The U.S. Supreme Court did not reach the First Amendment’s Free Exercise of Religion Clause. That clause is the primary basis of the Stormans Company’s challenge to the Pharmacy Commission rules requiring pharmacies to stock and dispense all time-sensitive medications needed by their patient population.”

The local spin
The legal wizards at the Becket Fund and the Alliance Defending Freedom who represent our local grocery chain could not let it be so simple. The brief submitted by Stormans insisted that Hobby Lobby strengthened their case in a number of ways. First, they argued, the Hobby Lobby case demonstrated that a corporation can raise a free exercise claim. Additionally, the plaintiffs contend that the Hobby Lobby decision confirms that having to provide emergency contraception burdens the plaintiffs’ free exercise. Presumably, stocking levonorgestrel when packaged for post-coital administration offends God in a way that stocking it for daily administration as Seasonique, Alesse, or Lutera does not. Thirdly, the plaintiffs contend that Hobby Lobby confirms that the Regulations cannot satisfy strict scrutiny, which pertains to the most stringent form of judicial review used to determine the constitutionality of certain laws. Lastly, the plaintiffs claim that Hobby Lobby confirms that the right of free exercise includes the right of full participation in the economic life of the community. This, the brief explains, is because the pharmacy regulations “force Plaintiffs to choose between their religious exercise and their profession.” A third option, unmentioned, is learning how emergency contraception actually works and unnailing themselves from the cross.

The hysteria over “abortion pills”
The pro-birth movement contends that emergency contraception (EC) can prevent a fertilized egg from implanting in the uterus, and this is tantamount to abortion. Medically, pregnancy does not begin until after implantation occurs, so even if emergency contraception worked in this manner, it would not be classified as “abortifacient,” or causing abortion. As it is, the available evidence contradicts the claim that EC interferes with post-fertilization events such as implantation. While some decades ago, it was hoped that emergency contraception worked to inhibit implantation, thus increasing its efficacy, decades of research have not borne out this mechanism of action.

A review of the medical literature regarding emergency contraception, published in August 2014, “Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy,” states that “all women should be informed that the best available evidence is that the ability of levonorgestrel [Plan B] and ulipristal acetate [Ella] to prevent pregnancy can be fully accounted for by mechanisms that do not involve interference with post-fertilization events. This means that while emergency contraception can work to prevent pregnancy after intercourse by delaying ovulation, and possibly by interfering with fertilization, there is no evidence that it has any effect after fertilization (or “conception”) has occurred.

The National Institutes of Health and the Mayo Clinic websites have changed their descriptions of emergency contraception recently to reflect the current science on how emergency contraception works, and the FDA may soon follow suit. Unfortunately, science and careful distinctions are of little interest to the forces that would like to see women returned to the days when every sex act was accompanied by a fear of pregnancy. The most rabid right wingers now make little distinction between contraception and abortion, consistently conflating contraception with abortion. For instance, on the website of the Alliance Defending Freedom, information regarding the multiple lawsuits challenging the contraception mandate refers to it as “Obama’s abortion pill mandate.” The website provides a “scorecard” that shows the mandate losing 77-6 in court.

A visit to Hobby Lobby
The nearest Hobby Lobby to Olympia is in Lakewood, just south of Tacoma. It’s a big box store, new-ish (it opened in March 2014, the same month the Supreme Court heard oral arguments about how burdensome providing birth control to its employees was to the corporation’s religious beliefs), and crowded with shiny merchandise manufactured in China. Although it is a Thursday afternoon in August, business is brisk: most shoppers prowl the aisles in family groups, admiring the wide range of Christian-themed items. “Oh look! It comes in a cross shape, too!” Almost everything for sale at Hobby Lobby is available in a cross shape, from cake pans to pillows to wedding cake toppers. Aisles are filled with shiny crosses, rugged crosses, glittery crosses, and crosses formed from railroad ties and mildly threatening-looking metal spikes, all made in China. From snippets of conversation overheard, it sounds as if some of the customers are discovering Hobby Lobby for the first time. The publicity surrounding the Supreme Court case does not appear to have daunted the enthusiasm of shoppers hunting for crosses in the least.

Despite the sultry summer weather, the store has already given over a substantial amount of shelf space to Christmas items: 13 aisles of decorations, plus additional areas devoted exclusively to supplies for Christmas crafts. The War for Christmas is being waged here, and they get an early start: a store employee told me Hobby Lobby begins displaying Christmas merchandise in “June or July.” Although I choose not to buy anything from this company, which has seen fit to deny reproductive healthcare to so many women, I wouldn’t have been surprised to hear cashiers pointedly wishing customers “Merry Christmas” before they emerged into the parking lot and the August heat.

Although Hobby Lobby is widely described as a craft supply store, the stock seems more heavily weighted toward home décor: wall hangings, doormats (including some with Bible verses), artificial flowers, holiday decorations, picture frames, cowboy and law enforcement memorabilia, even furniture. Hobby Lobby is a good place to shop if you like to make your home look festive, celebrating a new holiday every two weeks, overflowing landfills be damned. The offerings for serious crafters seemed somewhat skimpier. Having made candles in the past, I checked out the supplies on offer, and was somewhat underwhelmed by the limited wax colors available and the single type of beeswax. Likewise, knitting supplies weren’t nearly as comprehensive and high-quality as what is available at Canvas Works in Olympia. The fabric department was dwarfed by the floorspace given over to artificial flowers. The one area where Hobby Lobby truly offered extensive supplies was in its scrapbooking section. Aisle after aisle was packed with colorful pre-made stickers and “album systems,” awaiting the happy memories women could collate into book form, documenting the joys of family life with minimal expenditure of energy.

The future of birth control
When the Ralph’s boycott began in 2006, some people seemed to be surprised that birth control was even an issue; birth control has been available to married couples since the landmark decision Griswold v. Connecticut in 1965, and for all Americans since 1972, regardless of marital status. The right to use birth control seems pretty well-established, and there is no question that birth control is extremely popular. The last eight years, however, have seen a steady escalation of efforts to limit women’s access to contraception. Pharmacists and hospitals throughout the country have insisted that their freedom of religion is burdened by dispensing emergency contraception to rape victims. Rabid right wingers vociferate against providing funding to Planned Parenthood, a major source of low-cost contraception for many low-income women, and the push-back to the ACA’s required coverage of contraception has severely damaged the act’s potential.

What now for the ACA?
The ACA has the potential to do a lot for women with respect to reproductive health: in addition to expanding coverage, having access to long-term reversible contraception like IUDs without an out-of-pocket payment is likely to dramatically shift contraceptive use patterns and to reduce the unintended pregnancy rate, according to a study recently published by researchers at Penn State. Yet at the same time progress has been made, the anti-choice movement is again using the approach that proved so successful in limiting access to abortion at the consumer level. They are chipping away at access, using every means at their disposal, judicial, legislative, social and economic. Their attempt to make contraception harder to afford, harder to find at the pharmacy, to defund Planned Parenthoods and state contraception programs, and to scrutinize and shame the women who use birth control and expect their insurance to cover the cost.

Currently, according to Chris Humberson, Executive Director of the Washington Board of Pharmacy, the rule requiring pharmacies to dispense emergency contraception “is in effect for all pharmacies in Washington State that are not party to the litigation soon to be heard at the Ninth Circuit. Only those parties involved in the lawsuit are not required to comply with the regulation at this time.”

However, this will change if the plaintiffs get their way and the Ninth Circuit Court of Appeals decides, like the Supreme Court, that the plaintiff’s religious freedom claims in Stormans v. Wiesman have merit. Pharmacies throughout Washington could deny women emergency contraception, making it difficult to obtain these time-sensitive medications during the window in which they are most effective. The Stormans lawsuit, just like the Hobby Lobby lawsuit, is part of a broader attack on women’s reproductive rights, using the judicial system to make disingenuous claims of religious liberty. Right-wing extremist groups have teamed with religious business owners to enforce behavioral standards that have more to do with cultural prejudices than religious freedom, an effort that is, unfortunately, proving to be quite successful.

Janet Blanding has been writing about the Ralph’s boycott and Stormans court case since her Plan B prescription was refused at the Ralph’s Thriftway pharmacy in 2006. A married mother of one, she lives in Tacoma and works for a non-profit research organization. Phoebe Blanding was her research assistant on this article. Janet can be reached at jwblanding@gmail.com.

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