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Alliance Defending Freedom’s David Cortman, Lead Counsel For Conestoga Wood, On The SOTUS Decision and Subsequent Orders

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HH: I’m also in league with my friends from Alliance Defending Freedom this week. I teach each year a week with media people where David Cortman is the senior counsel and the vice president of litigation for Alliance Defending Freedom. And he is the lead counsel for Conestoga Woods, one of the two victorious parties last week in Hobby Lobby. He sits across the table from me. David, thanks for taking time away from your enjoyable activities tonight to spend a half hour explaining this all for us.

DC: Always great to be here. It’s my pleasure.

HH: Can we start as thought the decision’s not in front of us? Will you explain what the Affordable Care Act did, the bind into which it put religious groups and religious corporations, and all the different people, and then what has happened since? DC: Sure, as part of what’s commonly known as Obamacare, the ACA, Affordable Care Act, what was implemented was the mandatory coverage of what they call preventive services. Ironically enough, Congress themselves didn’t define what they wanted included, but went down to HHS, and they brought it out to the Institute of Medicine, the IOM, a private group, to say hey, what do you think we should include in this. Well, they’re a far left leaning group and said oh, include everything, you know, abortion-inducing drugs, sterilization, contraception, include everything. So what happened as part of the deal was every employer had to cover, offer as part of their plan, as part of their insurance coverage that they pay for, all what’s called preventive services. Now even religious employers, which is what we’re talking about here, don’t object to 99% of preventive coverages, and we’re talking about cancer coverages, colorectal screenings. You name it. They cover everything. The part they object to, depending on their religious beliefs, are the abortion-inducing drugs, which are covered, sterilization in some instances… HH: If you’re Roman Catholic, sterilization, all forms of birth control, not natural family planning are considered sinful. DC: That’s right, including contraception, as you mentioned. And so what happens is, so then Obamacare forces all these religious organizations, both not for profit and in this case, for profit, to cover all these items even though it violates their religious beliefs to do so. That’s the nutshell of where we are and how we got here.

HH: And the Catholic bishops especially, but many of our Evangelical friends raised a ruckus as soon as the Obamacare regulation came out developed in concert between HHS and this private group. And meetings were held, and an accommodation was reached. And this is very important for our audience to understand, I’m not quite sure how the accommodation works, David Cortman, but they said okay, if you’re really religious, if you’re the Roman Catholic Church, not, by the way, Catholic charities or anything, but you know, if you’ve got a church and you’re holding the Mass, or you’re other, then we have a solution for you. What was their solution and why did many of our friends, some of your clients, find it unacceptable?

DC: Well, there’s a couple of different levels. One of the biggest problems at the beginning was how narrow what the religious exemption was, which is the first part of it. And they said okay, if you’re a church, basically, you get this religious exemption, because we know that’s probably what you believe and the people who hang out with you. And so we’ll let you exempt out of this. But if you’re any other religious organization that has the same beliefs as churches, then you’re not included in that. Well, people raised a ruckus. Hundreds of thousands of complaints came in, and yet they still passed a law. It took a couple of years to add an additional, what they called, accommodation to it. And here’s where’s the rub. The second accommodation is for that next layer of religious groups, any religious non-profit, Catholic charities, as you mentioned. There’s many others. That case, you’re not considered to be a church, so you don’t get an exemption. So what they said was well, we’ll give you this accommodation. You can file this form, and you say while I have a religious objection, and then we’ll require you, or insurance or your TPA, your third party administrator if you’re self-insured, to cover those items for you, and that should suffice. The problem is in reality, it does not suffice.

HH: And we’re going to come back to that in a second, because there was a third category of issue, which were privately-held, closely-held corporations like Conestoga Woods, your client. DC: Right. HH: …which 950 employees, very successful, and they are adamantly opposed, but they are not a religious organization. They’re just run by religious people. And you took that all the way to the Supreme Court and you won under a statute called the Religious Freedom Restoration Act. Would you explain to people what the Religious Freedom Restoration Act does?

DC: Sure. You’re absolutely right, first of all, to talk about the Hahn family, wonderful family, Christian Mennonites, live in rural Pennsylvania, have run this business, employed 950 people. They’ve been in business for 50 years, great health insurance, great coverage, employees love them, and here comes the Obama administration and says now we’re going to force you to cover these items that violate your religious beliefs. These are very passive people, and said look, we have a real problem with that, and actually took a stand, very unlike them to do so. And one of the claims we brought was under the Religious Freedom Restoration Act that you just mentioned. That is a statute passed, believe it or not, back when President Clinton was in office, almost passed House and Senate unanimously, both sides were for it. It was the greatest thing since sliced bread, and a very good statute. And the reason it was passed was the Supreme Court a few years earlier basically gutted the Free Exercise Clause, which should have been enough to take care of this problem. But that’s a whole other story. And what they said was well, if there’s a neutral law and it burdens your religion, too bad. You’ve basically got to just deal with it. Well, the Religious Freedom Restoration Act said well, no, if there’s even a neutral law and there’s, they call it a substantial burden. If there’s a tremendous burden on you and it violates your religious belief, then the only way the government could do that is if they have this extremely importance interest, national safety, something really drastic to overcome that. So that’s the law that we used in this particular case to say no, you’re violating our religious beliefs, we shouldn’t have to cover these items. And I think one of the themes here is just because a family opens a business, it doesn’t mean that they voluntarily give up their constitutional or statutory rights.

HH: That’s the huge win. DC: Right.

HH: That’s the huge win of the last week. But in that RFRA, it says if the government’s going to burden you, they have to have a compelling interest, and then they must do so to the least extent that is possible.

DC: Right.

HH: And that’s where you won, because, and for reasons which I think may be hard to explain on the radio. The government had already basically estopped themselves from arguing that they had done it, correct?

DC: Yeah, and there are several reasons for that. You know, the government says oh, this is so important to have this happen, but first of all, they exempted almost 100 million people for political reasons, for convenient reasons. And so our argument was is how could you say that religion, which has its own protection, people forget, in the 1st Amendment in the Free Exercise Clause, that’s less important than a political handout, or less important that convenience of all these other people you exempted. And so what was interesting, what the Court says, well, there are other least restrictive ways, easier ways, let’s put it the other way, there are easier ways for you to do this rather than impinging on people’s 1st Amendment freedoms, and that is just handle it yourselves through the insurance company or different ways. In other words, don’t let the people who are running these business have to violate their beliefs and pay for these items.

HH: And people should remember this. The easiest thing of all is for the government to do the free cheese option, which is they give away food stamps. They can give away contraception.

DC: And they do already.

HH: And they do already. And so that will always be in the back of your mind. Now over the weekend, so you won. You, the Conestoga Woods folks, our friends at Hobby Lobby, you won this big win. They’re covered, they must be accommodated. We don’t know how the government’s going to accommodate them. But then over the weekend came these orders which sent the three justices, Ginsberg, Kagan and Sotomayor over the edge. What happened? And why are they so angry? DC: Yeah, what happened, basically, there was an order in a case dealing with Wheaton College. HH: Which is in Illinois, fine, long-standing Evangelical institution.

DC: And they basically said we object to this accommodation. And everybody is saying oh, the accommodation is great, and it gets you out of the loop. The problem that we have with the accommodation is this, and here’s the easiest way to explain it, is the form that the government has you sign is a specific legal form that amends your contract with the insurance company. So while they’re saying oh, yeah, we’re keeping you out of this, all you’re doing is telling us that you have a religious objection, what they’re doing is saying give me your authority, company or family, give me your sole authority, and sign it over to this other person so that we can actually include these items in your plan without you. So that’s the problem with this accommodation. It’s not taking you out of the picture. It’s taking your authority and granting it to someone else, which makes you complicit in the abortion evil that you believed in the first place.

HH: We’ve got a minute to the break. Explain that again, because that’s, it’s like don’t pull the trigger, but hand the gun.

DC: Exactly right. What you’re doing is you’re just saying look, you’re the only one who has the authority. This is a contract, right? You have an insurance company, it’s a contract. Well, one party can’t amend the contract. Both have to amend it. So what happens is, what they’re saying is well, we understand you don’t want to do this, so just sign this piece, don’t read it, just sign this piece of paper here, and then hand it over to someone, we’ll take care of it. Well, what you’re doing is you’re signing over your authority to amend your insurance plan to include the very same items you objected to in the first place. So it still makes you complicit in it, because you have to give your authority to the other person to do it.

HH: And so I really want people to think about this during the break. They are asking the people who have just won the victory to consent to the provision of the very services, and to in fact endorse them in one respect. It is like signing an endorsement card. It is like saying eat at Joe’s, go ahead and get these contraceptions. So it will, and there are many cases pending on this as well, not just among the closely-held corporations or Wheaton College.

DC: Right.

HH: And when we come back with David Cortman, we ask him what is the strategy, because a couple of cases concluded over the weekend with big wins. But we still don’t know quite what they mean. — – – –

HH: But over the weekend, Wheaton College did as well, as did a family-owned company in Colorado, as did a number of other people. But we’re not quite sure where the boundaries are afterwards. It’s like Versailles hasn’t been negotiated, yet, even though the Germans capitulated. So tell us, David Cortman, what is the question in front of us now? How, what do you need the government to do, and what do they need to tell you, to make your clients happy?

DC: Well, first of all, they need to tell the truth. And what I mean by that is they’re saying one thing, and another thing is happening. For example, the form that they want these organizations to sign is actually a legal form giving authority from the organization who has a religious objection, in these cases now switching to the not for profit cases, and giving it to their insurance company and third party administrators saying yes it’s okay to cover these items, these same items that we object to. Well of course, nobody wants to do that, because it makes them complicit. So we say fine, if the form doesn’t, is not important, which is what the government is saying, then we’ll just send them our objections straight to the HHS instead of sending it to the insurance company and the TPA. So what the government’s doing is they kind of want to have it both ways. They say no, no, we’ve kept you out of the loop, but hey, we still need your authority to do this, and you can’t have it both ways.

HH: Now eventually, the question is going to arise whether or not the accommodation given the religious organizations is itself sufficient. Have some cases been filed on that question?

DC: Yeah, many cases have been filed, in fact, several dozen. And interestingly enough, the Supreme Court has issued two injunctions pending appeal. They basically say no, you have to grant this injunction, and specifically told them how to do it. they said look, you don’t have to file the form that the government wants you to file, because that’s the legal authority. You can just get your own form and send to the government and say look, we object to this. So they’re being litigated. It’s only a matter of time the Supreme Court’s going to take that case. And that’s why there’s an overlap between the for profit cases and the not for profit cases, because the question comes down to if you have to accommodate me, what does that accommodation look like?

HH: And what we won in round one is RFRA applies. RFRA has strength. RFRA has five justices.

DC: That’s exactly right.

HH: And that’s big. Now that means that they’ve substantially burdened, and they accepted that as well, did they not?

DC: Yes. HH: They assumed that. And so how in the world could they ever make the Catholic Church provide contraception? I’m doing it, Colorado Christian University has sued, lots of Evangelicals have sued, Tyndale Publishing. You probably have a list of clients out the door, right? DC: Yeah, most of those are ours, that’s right.

HH: Okay, most of those are yours. But I’m just going to the Catholics, because everybody knows since 1968, there’s no doubt about the sincerity of the religious belief…

DC: Right.

HH: …because the Catholics have stood by their doctrine of no birth control since 1968. No one will doubt that. How can they make them do anything when the government can provide free birth control by simply setting up an exchange into which people can enroll?

DC: And that’s what’s amazing about this whole case. First of all, why did the government even pick this fight? You know you’re forcing people who have these well-known objections who’ve carried them forever, forcing people to fund abortion-inducing drugs. I mean, that’s incredible for a government to be able to do, and then turn around and say no, no, everything’s fine, just look the other way. And so the Court, I think, is going to come out and say the real accommodation is for the government to take care of it themselves. If they want to deal directly with the insurance company, they’re welcome to. But what they cannot do is involve these religious organizations and these religious families so they’re complicit in the taking of life or the violation of their religious beliefs.

HH: Now the problem might be, and this would require an Obamacare expert, I don’t know if you know it, is that the free cheese option may not have been provided for in legislation. Now no one will have the right to sue except an insurance company that will simply say you cannot order us by regulation to provide birth control via the exchange. You think that’s the problem?

DC: Well, we’re assuming the administration had any problem creating its own regulations in the first place. And I don’t think they do. In other words, when they need something to happen…

HH: They just invent them.

DC: …they just do it and invent it anyway. But there’s certainly a way, and I don’t think, you know, Congress would necessarily object, because don’t forget, most of this didn’t come from Congress. And that’s where we need to go back to. Congress has never passed anything like this, because it’s politically so unpopular. It’s been tried many, many times and always rejected. So when Congress didn’t do this, the administration went and did it themselves. And that was one of the things pointed out in the opinion. This is a government agency, not Congress itself, that’s forcing this on people. That would never be accepted by the general public. And so we have to start there.

HH: And David Cortman, the three dissenting judges this weekend, I think they’re arguing the next call. I think they’re, who was the Baltimore Orioles manager that was famous for, Earl Weaver. They’ve gone Earl Weaver on us, or Billy Martin, as you said. And my guess is that they just want people to misunderstand what is happening as part of the war on women. But they accuse their justices, their colleagues, of lying.

DC: Incredible. When you see language like that, the Supreme Court is usually very, very respectful toward each other. You know, Justice Scalia sometimes is accused of being harsh, but he just tells the truth. He very rarely attacks someone. He kind of attacks…

HH: And he’s pals with Justice Ginsberg.

DC: That’s right. And they all hang out, and he attacks the position, not the person. But when you accuse your fellow justices of lying or not telling the truth, that’s throwing some pretty big stuff. And I think you’re right. I think what they’re doing is just trying to say hey, you just finished saying this accommodation was fine in the Hobby Lobby/Conestoga opinion, and that’s not what they said.

HH: No, I read it over and over again. It’s not what they said.

DC: Right. So they did not lie. What they basically said is we’re not ruling on that. Generally speaking, what they said is if the government handles it themselves with the insurance company, that’s fine. Well, generally speaking, that’s true, just not in the system that they have right now.

HH: Now I also want to talk, and perhaps you’ll come back later in the week, I know there are other things you’ve got to get to, this was a huge win, because RFRA, not many people knew the extent and depth and breadth of its forcefulness. But it really is, it is a shield. You’re going to be very busy, David Cortman…

DC: Yeah.

HH: …because suddenly, your shield of people of faith got very bigger and more easily deployed. Don’t you believe that?

DC: I do, and the reason this is, I think, what’s a giant win, which is I think why the left is crying foul so much, is for several reasons. First, it’s because it undergirded free exercise protections through this statute, which should have never been taken away from the Constitution in the first place. I mean, you have Free Speech Clause, Free Exercise Clause, but yet it was gutted to mean nothing. Freedom of religion is the most important freedom that we have. All other of our freedoms are undergirded by that. It’s the first freedom, it’s the most important, and if you look at any country that doesn’t have religious freedom, you have no freedom at all, no freedom of speech, no freedom of the press, nothing. HH: Totalitarian. DC: That’s exactly right. So that’s the most important. But I think the bigger picture here is what people need to take away. We’re talking about religious freedom. We’re talking about respecting religious rights. But this law in and of itself is an unjust law. Anytime that you force people to violate their religious belief, this law is bad for everybody, and so yes, we, this is a great win for religious freedom, but people need to understand anytime the government forces any group of people to violate their beliefs, you could be next. So even if you don’t agree with those beliefs, you should worry about this. And this, in my opinion, especially the abortion pill mandate part of this Obamacare, is simply an unjust law, and people should not stand for it, because they should worry about that. HH: Do you think the left is, we’ve only got 45 seconds, we’ll talk about this later in the week, do you think the left is worried because it might be applied to the same sex marriage category? DC: I think they are. And I think they’ve always got their agenda. And what’s interesting, we hear so much on the left about tolerance, but for some reasons, folks on the right, especially religious folks, don’t get it. Our tolerance is if you agree with me, we’ll tolerate you. But if you don’t, we won’t, and we’ll silence you. And this is another example of why these types of cases are so important. HH: And the hysteria that we saw in that means we’re probably going to have a pretty rocky couple of sessions ahead. You’ve already had one case accepted for cert, so you’re back up there. And they’re going to get used to David Cortman being there, I think. DC: Let’s hope so. HH: I hope you enjoy the Court. Do you? DC: I do. I do. HH: All right, David Cortman from Alliance Defending Freedom, senior litigation counsel, thank you, always a joy, we’ll see you later in the week. DC: All right. End of interview.


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