Amicus Curiae Brief — Conestoga Wood Specialties Corp. v. Sebelius

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Nos. 13-354, 13-356

KATHLEEN SEBELIUS, ET AL.,

Petitioners.

Vv.

HOBBY LOBBY STORES, INC., ET AL.,

Respondents.

CONESTOGA WOOD SPECIALTIES CORP., ET AL..

Petitioners,

KATHLEEN SEBELIUS, ET AL..,

Respondents.

On Writs of Certiorari to the United States

Courts of Appeals for the Tenth and Third Circutts

BRIEF OF AMICI CURIAE WOMEN'S PUBLIC POLICY

GROUPS AND A COALITION OF FEMALE STATE

LEGISLATIVE AND EXECUTIVE BRANCH OFFICIALS

IN SUPPORT OF NONGOVERNMENT PARTIES

Rrra M. DuNAWAY Davin R. Lancpon

8604 Staples Mill Road Counsel of Record

Henrico, VA 23228 Lancpon Law LLC

8913 Cincinnati-Dayton Rd.

THomas M. MEssNER West Chester, OH 45069

1791 L St. N.W., Suite 550 (513) 577-7380

Washington, D.C. 20036 dlangdon@langdonlaw.com

Counsel for Amici Curiae

Becker Gallagher - Cincinnati. OH - Washineton. D.C. > 800.890.5901

OT tems a * =

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........ (te cone ee

iogy < y gt e !., 6: aa rer ]

SUMMARY OF THE ARGUMENT ............. 2

I Soy 5 ee a oe ee Va es 4

I. The Mandate Is a Socially Reckless Policy

that Increases the National Division

Surrounding Abortion. .................. 5

A. The Mandate Transforms Abortion

“Culture Wars” into Abortion “Conscience

Preah Rite lit Pgh eS oD Bae Bree 5, Bare 2: 5

B. The Mandate Departs from a National

Tradition of Protecting Conscience Rights

in the Abortion Context. .............. 8

II. Women Are Not a Monolithic Class of Self-

Interested Voters Who Universally Value

Free Abortion Drugs More than Religious

Freedom and Limited Government. ...... 11

A. Many Women Are Offended by the “War

on Women” Rhetoric Used to Describe

Opposition to the Mandate. ..... eee

B. Women Have as Much an Interest in

Religious Freedom as Anyone Else.

Women Have Been Named as Plaintiffs in

Nearly a Third of the More than Forty-

Five “For-Profit” Cases Filed Against the

Mandate. ....... 3 Ee AAR tae

C. The Mandate Benefits only Some, Not All,

Women. The Court Should Avoid

Characterizing the Mandate as a “Pro-

Woman” or “Gender Equality” Measure in

Any General Sense of those Terms. .... 18

es ae ease ve es we 8 19

APPENDIX

Appendix A: List of female state-level legislators

and one executive official joining brief

as a Coalition of State Legislative and

Executive Branch Officials ..... App. 1

lll

TABLE OF AUTHORITIES

Cases

Chrisman v. Sisters of St. Joseph of Peace,

SG ©. aoe coe Car. 197e) . eo ee a 8

Cohen v. Brown Univ.,

301 F.26 160 (ket Cir. 1908)... 2... wees 13

Doe v. Bolton,

410 U.S. 179 (1973) ... .. . 8,9

Maher v. Roe,

ae Sra ee CE 5 8k ee ee ee 6

Planned Parenthood of Se. Pa. v. Casey,

ge Sk eee re eee eras 2, 5,6

Roe v. Wade,

Oe We CUR kx ee KA he eee . 6,8

Stenberg v. Carhart,

ae Gls CD kkk peewee das kcal Cae

Webster v. Reprod. Health Servs.,

OR UD. SOP Cie bikie eine iecie thee

Statutes

42 U.S.C. § 238n(a) (1996) .............. cls ee

20 U.S.C. § 1688 (1988) ... ' - 10

42 U.S.C. § 2996f{b)(8) (2010) ...... eae, aay ee

Consolidated Appropriations Act, 2014, Pub. L. No.

113-76, div. B (Commerce, Justice, Science, and

Related Agencies Appropriations Act, 2014), tit.

ii (Department of Justice), § 203 (2014) +e, 48

Consolidated Appropriations Act, 2014, Pub. L. No.

113-76, div. H (Departments of Labor, Health

and Human Services, and Education, and

Related Agencies Appropriations Act, 2014), tit.

ee a a 9

Health Programs Extension Act of 1973, Pub. L. No.

93-45, § 401, 87 Stat. 91, 95 (codified as

amended at 42 U.S.C. § 300a-7 (2012))...... 8,9

Other Materials

De Gee. Beet, Den CRO ra) swe ec eee 9

be ee es | 9

119:‘Cone. Rec. 17462 (1973) .......... ......., 9

be ee Ca yt) Rae 9

Asma T. Uddin and Ashley McGuire, It’s about

religious liberty, not birth control, On Faith (Mar.

7, 2012), http://www.faithstreet.com/onfaith/2012

/03/07/beyond-the-war-on-women-its-about-

religious-liberty-not-birth-controV/11110 ... 12,13

Asma T. Uddin, Testimony before the Judiciary

Comm. of the U.S. House of Representatives

(Feb. 28, 2012), available at

http://www.becketfund.org/wp-content/

uploads/2012/02/Testimony-Oral-Asthma-

I eG ca ca ces ees 14

Br. for Pet’r, Conestoga Wood Specialties Corp. v.

Sebelius, No. 13-356 (U.S. Jan. 10, 2014) ...... 4

Br. for Resp’ts on Pet. for a Writ of Cert., Sebelius v.

Hobby Lobby Stores, Inc., 134 S. Ct. 678 (2013)

6S ee ee . . 435

Class Action Compl., Little Sisters of the Poor Home

for the Aged, Denver, Colo. v. Sebelius, No. 1:13-

cv-02611-WJM-BNB (D. Colo. Sept. 24, 2013),

2013 WL 6839900, injunction pending appeal

granted (U.S. Jan. 24, 2014) (No. 13A691) = 17,

Compl., Bick Holdings, Inc. v. U.S. Dep’t of Health

& Human Servs., No 4:13-cv-00462-AGF (E.D.

Mo. Mar. 13, 2013) .. sta

Compl., Johnson Welded Prods., Inc. v. Sebelius, No.

1:13-cv-00609-ESH (D.D.C. Apr. 30, 2013) ....

Compl., Mersino Mgmt. Co. v. Sebelius, No. 2:13-

cv-11296-PDB-RSW (E.D. Mich. Mar. 22, 2013),

appeal filed, No. 13-1944 (6th Cir. July 11,

CE eee eee a es 6 eee Kt RE

Compl., Yep v. U.S. Dep’t of Health & Human Servs.,

No. 1:12-cv-06756 (N.D. Ill. Jan. 3, 2013), appeal

filed, No. 13-1478 (7th Cir. Mar. 5, 2013) .....

Compl. for Declaratory & Injunctive Relief,

Hartenbower v. U.S. Dep’t of Health & Human

Serus., No. 1:13-cv-02253 (N.D. Ill. Mar. 26,

SE 6-8 see eee eee oreo eee tee eee nee

Compl. for Declaratory & Injunctive Relief, Korte v.

U.S. Dep't of Health & Human Servs., 912 F.

Supp. 2d 735 (S.D. Ill. 2012) (No. 3:12-CV-

01072-MJR-PMF), rev'd sub nom., Korte ov.

Sebelius, 735 F.3d 654 (7th Cir. 2013)

Coverage of Certain Preventative Services Under

the Affordable Care Act, 78 Fed. Reg. 39873

(July 2,2013) ........... -e wena

. 16

Current Federal Laws Protecting Conscience Rights,

U.S. Conference of Catholic Bishops (July 2012),

available at http://www.usccb.org/ issues-and-

action/religious-liberty/conscience-protection/

upload/Federal-Conscience-Laws.pdf .

First Am. Verified Compl., Conestoga Wood

Specialties Corp. v. Sebelius, 917 F. Supp. 2d

394 (E.D. Pa. 2013) (No. 5:12-cv-06744-MSG),

affd, 724 F.3d 377 (3d Cir. 2013), cert. granted,

ee ore

First Am. Compl., Geneva Coll. v. Sebelius, 941 F.

Supp. 2d 672 (W.D. Pa. May 31, 2012) (No. 2:12-

cv-00207-JFC), appeal filed, No. 13-2814 (3d

Ne a eek sk bh ee

First Am. Verified Compl., Newland v. Sebelius, 881

F. Supp. 2d 1287 (D. Colo. 2012) (No. 1:12-cv-

1123-JLK), affd, No. 12-1380, 2013 WL 5481997

Eg Re a

Helen M. Alvaré and Kim Daniels, Open Letter to

President Obama, Secretary Sebelius and

Members o f Cornrgreses,

http://womenspeakforthemselves.com/ .......

Jennifer A. Marshall, The War on Women’s

Freedom, The Foundry (Feb. 18, 2012),

http://blog.heritage.org/ 2012/02/18/ the-war-on-

EC eee

Jennifer A. Marshall, ‘War on women?’ Beware the

liberal hyperbole, TwinCities.com (Mar. 29,

2012), http://www.twincities.com/

ci_20276024/jennifer-marshall-war-women-

beware-liberal-hyperbole . ... ............

Vil

Kathryn Jean Lopez, The War on Men, Nat’! Rev.

Online (Mar. a9, ee eah.

http://www.nationalreview.com/articles

/293740/war-men-kathryn-jean-lopez ... 12,13

Mark L. Rienzi, The Constitutional Right Not to

Kill, 62 EMORY L. J. 121 (2012) .............

Press Release, Concerned Women for America,

Statement of Penny Young Nance on Justice

Sonia Sotomayor’s HHS Mandate Decision (Jan.

1, 2014), available at http://www.cwfa.org/

statement-of-penny-young-nance-on-justice-

sonia-sotomayors-hhs-Mandate-

decision/#sthash.6R78ZvCU.dpuf .......

Press Release, U.S. Congressman Diane Black,

People Shouldn’t Have to Choose Between Health

Coverage and Conscience (Jan. 3, 2014), available

at http://black.house.gov/press-release/case-you-

missed-it-people-shouldnt-have-choose-between-

health-coverage-and-conscience ..... .......

The Becket Fund for Religious Liberty, HHS

Mandate Information Central,

http://www.becketfund.org/

hheinformationcentraV ...................

Thomas M. Messner, From Culture Wars to

Conscience Wars: Emerging Threats to

Conscience, Heritage Foundation (Apr. 13, 2011),

http://www.heritage.org/research/reports/2011/

04/ from-culture-wars-to-conscience-wars-

emerging-threats-to-conscience ..... .. 8

. 14

vill

Verified Compl. & Demand for Injunctive Relief,

Autocam Corp. v. Sebelius, No. 1:12-cv-01096-

RJJ (W.D. Mich. Oct. 8, 2012), 2012 WL

6845677, affd, 730 F.3d 618 (6th Cir. 2013),

petition for cert. filed, 82 U.S.L.W. 3245 (U.S.

Oct. 15, 3013) (Ne. 13-468) .. 1. i ww cece. 17

Verified Compl., Armstrong v. Sebelius, No. 1:13-cv-

00563-RBJ (D. Colo. Sep. 17, 2013), 2013 WL

5213640, appeal filed, No. 13-1480 (10th Cir.

er rerio ee . 15

Verified Compl. for Declaratory & Injunctive Relief,

Feltl & Co. v. Sebelius, No. 0:13-cv-02635-DWF-

JJK (D. Minn. Sep. 25, 2013) ........:..... 15

Verified Compl., Trijicon, Inc. v. Sebelius, No. 1:13-

cv-01207-EGS (D.D.C. Aug. 5 2013) ...... 15, 16

WPA Opinion Research Poll (Dec. 6, 2013) ...... 13

INTEREST OF AMICI’

Amict are united by their concern for women’s

public policy issues.

In the spirit of the original suffragettes, Susan B.

Anthony List works for the election of candidates who

champion life and oppose abortion. Its members share

the conviction of Alice Paul, author of the 1923 Equal

Rights Amendment, that “Abortion is the ultimate

exploitation of women.”

Charlotte Lozier Institute is the education and

policy arm of the Susan B. Anthony List. Named after

a 19th century feminist physician who, like Susan B.

Anthony, championed women’s rights’ without

sacrificing either equal opportunity or the lives of the

unborn, the Institute studies federal and state policies

and their impact on women’s health and on child and

family well-being.

Concerned Women for America is the nation’s

largest public policy women’s organization. It is

committed to promoting laws that reflect Biblical

principles in public policy, and among these are the

principles of religious liberty, that each human life—at

every stage of development—is imbued with unique

dignity and value, and that in a civil society, everyone

' No counsel for a party authored this brief in whole or part, and

no one other than Amici Curiae or their members or their counsel

made a monetary contribution to the preparation or submission of

this brief. Respondents in Case No. 13-354 have consented to the

filing of this brief. Counsel of record for all other parties to these

actions have filed with the Clerk consents to the filing of amicus

curiae briefs.

is called to care for the welfare of others, including

women seeking abortions.

The Coalition of State Legislative and

Executive Branch Officials is composed of female

state-level legislators and one executive official. These

public officials share a commitment to promoting wise

public policies that advance the health and safety of

women and protect the religious freedom of all people.

The public officials constituting this coalition are

named individually in an Appendix to this brief.

SUMMARY OF THE ARGUMENT

(1) The Mandate is a socially reckless policy that

increases the national division surrounding abortion.

For nearly two generations, the nation has debated

the “profound moral and spiritual implications,”

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,

850 (1992), of abortion on demand. Fatigued with the

contentious and controversial nature of the abortion

issue, many individuals would “call{} the contending

sides of [this] national controversy to end their national

division.” Id. at 867.

The federal law under challenge in this case (the

“Mandate”) goes in precisely the opposite direction. By

forcing conscientiously opposed individuals and

organizations to participate in abortion, the Mandate

transforms abortion culture wars into abortion

conscience wars and ushers in a new and “troublesome

era in the history of our Nation.” Jd. at 1001 (Scalia, J.,

concurring in the judgment in part and dissenting in

part).

The socially reckless character of the Mandate is

further demonstrated by its departure from a long- and

well-established tradition of protecting abortion

conscience rights in federal law.

(2) | Women are not a monolithic class of self-

interested voters who universally value free abortion

drugs more than religious freedom and limited

government.

The Mandate is said to be a pro-woman measure

that advances women’s interests. Opposition to the

Mandate is often characterized as a “war on women.”

Many women are offended by this “war on women”

rhetoric. No one person, and certainly not the

Government, speaks for the interests of all women, and

the Mandate cannot be generalized as a measure that

advances the interests of all women

The Mandate advances the interests of only that

subset of women who value free abortion drugs above

public goods such as religious freedom and limited

government. The Mandate works against the interests

of those free-minded, independent women whose

personal, moral, and political values lead them to

support a different balance of policy considerations.

As demonstrated by the presence of female plaintiffs

in nearly a third of the more than forty-five cases that

have been filed against the Mandate by for-profit

parties, the Mandate also works against the interests

of women who wish to own or operate businesses

according to their own values.

ARGUMENT

The nongovernment parties in these actions

challenge a regulation (the “Mandate”) promulgated

under the Patient Protection and Affordable Care Act

that violates their religious freedom by forcing them to

participate in abortion. See Br. for Resp’ts on Pet. for a

Writ of Cert. at 4-5, Sebelius v. Hobby Lobby Stores,

Inc., No. 13-354 (U.S. Oct. 21, 2013) (“Br. For Resp’ts”);

Br. for Pet’r at 3-6, Conestoga Wood Specialties Corp.

v. Sebelius, No. 13-356 (U.S. Jan. 10, 2014). The

nongovernment parties explain that the Mandate

forces them to violate religious beliefs by covering in

health insurance plans devices and drugs that can

prevent an embryo from implanting in the womb. See

Br. for Resp’ts, supra, at 3-6; Br. for Pet’r, supra, at

1—5. The nongovernment parties believe that abortion

occurs when an embryo is prevented from implanting

in the wornb, yet federal law imposes significant

financial penalties if they refuse to cover drugs and

devices that can do just that. See Br. for Resp’ts, supra,

at 3, 5-6; Br. for Pet’r, supra, at 3-6, 8.

The nongovernment parties ably explain why being

forced to participate in abortion violates federal laws

protecting their religious freedom. Amici submit this

brief to bring the following two matters to the Court’s

attention. First, by transforming the abortion conflict

into a religious freedom conflict, the Mandate

heedlessly increases the national division surrounding

abortion and departs from a long- and well-established

national tradition of respecting abortion-related

conscience rights. Second, the Mandate should not be

characterized as a “pro-woman” or “gender equality”

measure in any general sense of those terms. No one

person speaks for all women on these issues, many

women oppose the Mandate, and women have as much

an interest in religious freedom as anyone else.

I. The Mandate Is a Socially Reckless Policy

that Increases the National Division

Surrounding Abortion.

By forcing conscientious objectors to participate in

abortion, the Mandate transforms abortion “culture

wars” into abortion “conscience wars.” The socially

reckiecss character of the Mandate is further

demonstrated by its departure from a long- and well-

established tradition of protecting abortion-related

conscience rights in federal law.

A. The Mandate Transforms Abortion

“Culture Wars” into Abortion

“Conscience Wars”.

For nearly two generations, the nation has debated

the “profound moral and spiritual implications,”

Planned Parenthood, 505 U.S. at 850, of abortion on

demand. Fatigued with the “contentious” and

“controversia!” nature of the abortion issue, Stenberg v.

Carhart, 530 U.S. 914, 947 (2000) (O’Connor, J.,

concurring), many individuals would “call{] the

contending sides of {this] national controversy to end

their national division,” Planned Parenthood, 505 U.S.

at 867.

The Mandate goes in precisely the opposite

direction. By forcing conscientiously opposed

individuals and organizations to participate in

abortion, the Mandate transforms abortion “culture

wars into abortion “conscience wars,” Thomas M.

Messner, From Culture Wars to Conscience Wars:

Emerging Threats to Conscience, Heritage Foundation

(Apr. 13, 2011),? and ushers in a new and “troublesome

era in the history of our Nation,” Planned Parenthood,

505 U.S. at 1001 (Scalia, J., concurring in the judgment

in part and dissenting in part).

In discussing abortion, this Court has repeatedly

invoked the concept of freedom from governmental

intrusion in the choices of private citizens. See id. at

851 (opinion of the Court) (explaining that the Court’s

“cases recognize the right ... to be free from

unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision

whether to bear or beget a child” (emphasis added and

internal quotation marks omitted)); Maher v. Roe, 432

U.S. 464, 471 (1977) (explaining that Roe v. Wade

“Idrew] on a group of disparate cases restricting

governmental intrusion, physical coercion, and criminal

prohibition of certain activities” (emphasis added)). The

abortion right, as declared by this Court, is freedom

from government intrusion in the choice to have an

abortion. The abortion right is not a right to support for

abortion from the government, see Webster v. Reprod.

Health Servs., 492 U.S. 490, 511 (1989) (citing cases

that “support the view that the State need not commit

any resources to performing abortions”), much less a

right to command support for abortion from other

private citizens, see infra Section I.B (providing federal

laws protecting conscience in abortion context).

? Available at http://www.heritage.org/research/reports/20 1 1/04/

from-culture-wars-to-conscience-wars-emerging-threats-to-

conscience.

Without adding anything to the freedom from

government intrusion invoked in this Court’s abortion

decisions, the Mandate directly intrudes on the choice

not to participate in abortion by imposing financial]

penalties on employers that refuse to provide insurance

coverage that includes drugs and devices that can

cause abortion. This reshuffling of interests between

private citizens as well as between private citizens and

the government is significant: Not even the

Government has an obligation to support abortion, and

federal law has long protected the choice of private

citizens not to participate in abortion, yet through the

Mandate the Government now forces some private

citizens to support abortion for other private citizens

even if doing so violates religious beliefs.

By forcing private citizens to participate in abortion,

the Government transforms what this Court has

declared to be a _ constitutional freedom from

government intrusion in the choice to participate in

abortion into a government-enforced right to command

support for abortion from other private citizens. In so

doing, the Mandate turns the abortion debate upside

down and guarantees that what is already “one of the

most contentious and controversial [issues] in

contemporary American society,” Stenberg, 530 U.S. at

947 (O’Connor, J., concurring), will become only more

contentious and controversial. In short, not only does

the Mandate violate the religious freedom of the

nongovernment parties in this case and other

individuals and entities that are similarly situated, it

does so in a way that recklessly increases national

division and further polarizes an already very polarized

society.

B. The Mandate Departs from a National

Tradition of Protecting Conscience

Rights in the Abortion Context.

The socially reckless character of the Mandate is

further demonstrated by its departure from a long- and

well-established tradition of recognizing the need for

abortion-related conscience rights and protecting those

rights in federal law.

In Roe v. Wade, for example, this Court cited

abortion-related conscience protections embraced by

the American Medical Association (“AMA”). See 410

U.S. 113, 143 & n.38 (1973). In describing the history

of AMA viewpoints regarding abortion, the Court cited

an AMA resolution that described abortion coldly as “a

medical procedure” but also stated that “[nJeither

physician, hospital, nor hospital personnel shall be

required to perform any act violative of personally-held

moral principles.” Id. at 143 n.38. Similarly, in Doe v.

Bolton, 410 U.S. 179, 197-98 (1973), the companion

case to Roe, this Court cited abortion-related conscience

protections provided by Georgia law. “These provisions

obviously are in the statute,” the Court wrote, “in order

to afford appropriate protection to the individual and to

the denominational hospital.” Jd. at 198; see Chrisman

u. Sisters of St. Joseph of Peace, 506 F.2d 308, 312 (9th

Cir. 1974) (discussing how state conscience protections

factored into Doe decision).

Then, just months after this Court decided the Roe

and Doe cases, Congress passed federal legislation

commonly referred to as the Church Amendment,

which protects abortion-related conscience rights of

both individuals and institutions. See Health Programs

Extension Act of 1973, § 401, Pub. L. No. 93-45, 87

Stat. 91, 95 (codified as amended at 42 U.S.C. § 300a-7

(2012)). Senator Ted Kennedy, who would become

known for his vocal support of abortion rights, spoke in

favor of the Church Amendment during debate in the

Senate, see 119 Cong. Rec. 9601-02 (1973), and

Members of Congress overwhelmingly supported the

legislation, see 119 Cong. Rec. 9604 (1973) (Senate vote

on Church Amendment as introduced in Senate was

92-1); 119 Cong. Rec. 17462-63(1973) (House vote on

bill including generally similar but reworked

conscience protection amendment was 372-1); 119

Cong. Rec. 18072 (1973) (Senate vote_-on House

amendments to Senate bill, including amendment to

conscience protection, was 94-0). In enacting the

Church Amendment, “Congress quite properly sought

to protect the freedom of religion of those with religious

or moral scruples against . . . abortions.” Chrisman,

506 F.2d at 312.

Since Congress passed the Church Amendment in

1973, the principle of conscientious objection has been

repeatedly affirmed and, today, federal law contains

several protections for rights of conscience in the

context of abortion. See Consolidated Appropriations

Act, 2014, Pub. L. No. 113-76, div. H (Departments of

Labor, Health and Human Services, and Education,

and Related Agencies Appropriations Act, 2014), tit. V

(General Provisions), § 507(d)(1) (2014) (stating that

“(njone of the funds made available in this Act may be

made available to a Federal agency or program, or to a

State or local government, if such agency, program, or

government subjects any institutional or individual

health care entity to discrimination on the basis that

the health care entity does not provide, pay for, provide

coverage of, or refer for abortions”); id., div. B

(Commerce, Justice, Science, and Related Agencies

Appropriations Act, 2014), tit. i1 (Department of

Justice), § 203 (stating that “[nJone of the funds

appropriated under this title shall be used to require

any person to perform, or facilitate in any way the

performance of, any abortion”); 42 U.S.C. § 238n(a)

(1996) (establishing that neither the Federal

Government nor any State or local government that

receives Federal! financial assistance may “subject any

health care entity to discrimination” on several bases

related to not participating in abortion); 20 U.S.C.

§ 1688 (1988) (prohibiting a federal sex discrimination

provision from being “construed to require or prohibit

any person, or public or private entity, to provide or

pay for any benefit or service, including the use of

facilities, related to an abortion”); 42 U.S.C.

§ 2996f(b)(8) (2010) (restricting funds made available

by the Legal Services Corporation from being used “to

provide legal assistance with respect to any proceeding

or litigation which seeks . . . to compel any individual

or institution to perform an abortion, or assist in the

performance of an abortion, or provide facilities for the

performance of an abortion, contrary to the religious

beliefs or moral convictions of such individual or

institution”); see also Mark L. Rienzi, The

Constitutional Right Not to Kill, 62 EMORY L. J. 121,

147-52 (2012) (discussing federal abortion-related

conscience protections); Current Federal Laws

Protecting Conscience Rights, U.S. Conference of

Catholic Bishops (July 2012) (providing text of several

federal abortion-related conscience protections along

with explanatory notes and timeline).°

The Mandate violates the commonsense

understanding reflected by these policies that, even as

the public continues to debate the issue of abortion,

conscientiously opposed citizens and _ institutions

should not be forced to violate their beliefs.

OK O*

The Court should protect religious freedom for the

reasons set forth in the briefs submitted by the

nongovernment parties. By protecting religious

freedom, the Court will uphold a long tradition of

respecting abortion conscience rights and prevent

abortion “culture wars” from mushrooming into

abortion “conscience wars.”

Il. Women Are Not a Monolithic Class of Self-

Interested Voters Who Universally Value

Free Abortion Drugs More than Religious

Freedom and Limited Government.

The Government frames the Mandate as a policy

designed to advance the interests of women. See

Coverage of Certain Preventative Services Under the

Affordable Care Act, 78 Fed. Reg. 39873, 39873 (July 2,

2013) (asserting regulatory interests in “public health”

and “gender equity”). Indeed, opposition to the

3 Available at http://www.usccb.org/issues-and-action/religious-

liberty/conscience-protection/upload/Federal-Conscience-Laws. pdf.

Available at http://www.gpo.gov/fdsys/pkg/FR-2013-07-

02/pd£/2013-15866.pdf.

Mandate has sometimes been characterized as a “war

on women.”

However, many women are offended by the “war on

women” rhetoric because it suggests all women think

the same way on these issues. Many women oppose the

Mandate. In addition, as demonstrated concretely by

the many female plaintiffs challenging the Mandate in

federal courts, women have just as much an interest in

religious freedom as anyone else.

A. Many Women Are Offended by the “War

on Women” Rhetoric Used to Describe

Opposition to the Mandate.

The “war on women” rhetoric used to describe

opposition to the Mandate “belittle{[s] women’s

intellectual freedom to make up our own minds on the

merits of ideas,” Jennifer A. Marshall, ‘War on women?’

Beware the liberal hyperbole, TwinCities.com (Mar. 29,

2012),° and is offensive to the many women “who do not

want to be treated as a lump category whose thinking

stops at our reproductive organs,” Asma T. Uddin and

Ashley McGuire, It’s about religious liberty, not birth

control, On Faith (Mar. 7, 2012).° On issues involving

reproductive health in particular, it is both inaccurate

and insulting to suggest that “all women are cut from

the same political cloth,” Kathryn Jean Lopez, The War

° Available at http://www.twincities.com/ci_20276024/jennifer-

marshall-war-women-beware-liberal-hyperbole.

° Available at http://www faithstreet.com/onfaith/2012/03/07/beyond

-the-war-on-women-its-about-religious-liberty-not-birth-

control/11110.

on Men, Nat'l Rev. Online (Mar. 19, 2012),’ or that the

female “gender somehow thinks and votes as a

monolithic block,” Uddin & McGuire, supra.

Indeed, the time for “stereotyped notions of women’s

interests,” Cohen v. Brown Univ., 101 F.3d 155, 179

(1st Cir. 1996), is long past. As the renowned legal

scholar and women’s leader Helen Alvaré has

explained, “[n]o one speaks for all women” on the kinds

of issues raised by the Mandate, Helen M. Alvaré and

Kim Daniels, Open Letter to President Obama,

Secretary Sebelius and Members of Congress,” and more

than 40,000 women have signed their names agreeing

with that statement, see id. (click on “View the more

than 40,000 Signatures”).

B. Women Have as Much an Interest in

Religious Freedom as Anyone Else.

Women Have Been Named as Plaintiffs

in Nearly a Third of the More than

Forty-Five “For-Profit” Cases Filed

Against the Mandate.

Given the wide range of viewpoints held by women

on public policy issues including those raised by the

Mandate, it should come as no surprise that many

women oppose the Mandate. See WPA Opinion

Research Poll (Dec. 6, 2013) (finding that “[al majority

” Available at http://www.nationalreview.com/articles/293740/war-

men-kathryn-jean-lopez.

® Available at http://womenspeakforthemselves.cony (last visited

Jan. 27, 2014).

of women ages 18 to 54 (54%) oppose the Mandate”);*

see also, e.g., Press Release, U.S. Congressman Diane

Black, People Shouldn’t Have to Choose Between

Health Coverage and Conscience (Jan. 3, 2014);'° Press

Release, Concerned Women for America, Statement of

Penny Young Nance on Justice Sonia Sotomayor’s HHS

Mandate Decision (Jan. 1, 2014)."! In the words of one

woman, the Mandate’s attack on “the free exercise of

religion ...is a war on freedom that should concern all

Americans, and particularly women.” Jennifer A.

Marshall, The War on Women’s Freedom, The Foundry

(Feb. 18, 2012).'”

Women have as much an interest in religious

freedom as anyone else, see Asma T. Uddin, Testimony

before the Judiciary Comm. of the U.S. House of

Representatives (Feb. 28, 2012) (testifying that “it is

just as much in women’s interest to protect [the] right

[to religious freedom] as it is in men’s”),”’ and not just

as an important public good, but also as a vital

® Available at http://downloads.frc.org/EF/EF13K71.pdf.

'0 Available at http://black. house.gov/press-release/case-you-

missed-it-people-shouldnt-have-choose-between-health-coverage-

and-conscience.

'l Available at http://www.cwfa.org/statement-of-penny-young-

nance-on-justice-sonia-sotomayors-hhs-Mandate-

decision/#sthash.6R78ZvCU.dpuf.

2 Available at http://blog. heritage.org/20 12/02/18/the-war-on-

womens-freedom/.

'S Available at http://www.becketfund.org/wp-

content/uploads/20 12/02/Testimony-Oral-Asma-EMBARGOED pdf.

individual and institutional freedom. For those women

who own or operate businesses and object to

participating in abortion, the threats posed by the

Mandate are concrete and real: Of the more than forty-

five cases that have been filed against the Mandate by

for-profit parties, see The Becket Fund for Religious

Liberty, HHS Mandate Information Central,'* women

have been named as plaintiffs in almost a third, see Br.

for Resp’ts on Pet. for a Writ of Cert. at 1, Sebelius v.

Hobby Lobby Stores, Inc., 1345S. Ct. 678 (2013) (No. 13-

354) (stating that parties challenging the Mandate

include Barbara Green, Darsee Lett, other family

members, and “their family businesses”); First Am.

Verified Compl. at 9 13, Conestoga Wood Specialties

Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013)

(No. 5:12-cv-06744-MSG) (asserting that “Plaintiff

Elizabeth Hahn, is a shareholder of Plaintiff Conestoga

and is a member of the Board of Directors”), affd, 724

F.3d 377 (3d Cir. 2013), cert. granted, 134 S. Ct. 678

(2013); Verified Compl. for Declaratory & Injunctive

Relief at 9 15, Feltl & Co. v. Sebelius, No. 0:13-cv-

02635-DWF-JJK (D. Minn. Sep. 25, 2013) (asserting

that Plaintiff Mary Jo Felt] “is the grantor of the Mary

Joanne Felt] JCF Trust, which is a minority owner of

[Plaintiff Felt] and Company, Inc.],” and is also the

President of Felt! and Company, Inc.); Verified Compl.

at Yq 2-4, Armstrong v. Sebelius, No. 1:13-cv-00563-

RBJ (D. Colo. Sep. 17, 2013), 2013 WL 5213640

(describing plaintiffs, including Plaintiff Dorothy A.

Shanahan), appeal filed, No. 13-1480 (10th Cir. Nov.

15, 2013); Verified Compl. at 44 6, 11, 13, Trijicon, Inc.

* Available at http://www_becketfund_ org/bhsinformationcentral/

(last visited Jan. 20, 2014).

v. Sebelius, No. 1:13-cv-01207-EGS (D.D.C. Aug. 5,

2013) (asserting that Plaintiffs Sharon Lycos and

BethAnne Falkowski, along with other individual

plaintiffs, are shareholders of Plaintiff Trijicon, Inc.

and participate in the operation and management of

the company); Compl. at 4 25, 31, Mersino Mgmt. Co.

v. Sebelius, No. 2:13-cv-11296-PDB-RSW (E.D. Mich.

Mar. 22, 2013) (asserting that “Plaintiff Mersino

Management is [a] management company and provides

the insurance for” companies including Mersino

Southwest, LLC and Mersino Enterprises, Inc. and

that “Plaintiff Karen A. Mersino is the owner and

shareholder of . . Mersino Southwest, LLC and

Mersino Enterprises, Inc.”), appeal filed, No. 13-1944

(6th Cir. July 11, 2013); Compl. at 79 13-14, Johnson

Welded Prods., Inc. v. Sebelius, No. 1:13-cv-00609-ESH

(D.D.C. Apr. 30, 2013) (asserting that Plaintiff Lilli

Johnson is “the mother of seven children,” is “the

President and majority owner of [Plaintiff Johnson

Welded Products, Inc.|,” and “makes the executive

decisions governing the operations of [Plaintiff Johnson

Welded Products, Inc.}”); Compl. for Declaratory &

Injunctive Relief at 7 3, Hartenbower v. U.S. Dep’t of

Health & Human Servs., No. 1:13-cv-02253 (N.D. Ml.

Mar. 26, 2013) (asserting that Plaintiff Catherine

Hartenbower and second individual plaintiff “together

own a controlling interest in Plaintiff Hart Electric,

LLC and Plaintiff H.I. Hart, LLC”); Compl. at ¥ 3, Bick

Holdings, Inc. v. U.S. Dep't of Health & Human Servs.,

No 4:13-cv-00462-AGF (E.D. Mo. Mar. 13, 2013)

(naming Mary Frances Callahan, Mary Clare Bick,

Mary Patricia Davies, Mary Margaret Jonz, and Mary

Sarah Alexander as plaintiffs who, along with other

individual plaintiffs, “own the controlling interest” in

Plaintiff Bick Holdings, Inc. and its subsidiaries);

Compl. at 9 2,4, Yep v. U.S. Dep’t of Health & Human

Seruvs., No. 1:12-cv-06756 (N.D. Ill. Jan. 3, 2013)

(asserting that Plaintiff Mary Anne Yep and another

individual plaintiff “own and control the corporate

plaintiff, Triune Health Group, Inc., an [Illinois

corporation”), appeal filed, No. 13-1478 (7th Cir. Mar.

5, 2013); First Am. Compl. at J 3, Geneva Coll. v.

Sebelius, 941 F. Supp. 2d 672 (W.D. Pa. May 31, 2012)

(No. 2:12-cv-00207-JFC) (asserting that Plaintiff Carrie

E. Kolesar and her father, along with other individuals,

own Plaintiff Seneca Hardwood Lumber Company,

Inc.), appeal filed, No. 13-2814 (3d Cir. June 17, 2013);

Verified Compl. & Demand for Injunctive Relief at

4¥ 18, Autocam Corp. v. Sebelius, No. 1:12-cv-01096-RJJ

(W.D. Mich. Oct. 8, 2012), 2012 WL 6845677 (asserting

that Plaintiff Margaret Kennedy is an owner of

Plaintiff Autocam), affd, 730 F.3d 618 (6th Cir. 2013),

petition for cert. filed, 82 U.S.L.W. 3245 (U.S. Oct. 15,

2013) (No. 13-482); First Am. Verified Compl. at J 15,

Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo.

2012) (No. 1:12-cv-1123-JLK) (asserting that Plaintiff

Christine Ketterhagen “is a 25% shareholder of

Plaintiff Hercules Industries, Inc.” and “is one of the

four members of the Board of Directors”), aff'd,

No. 12-1380, 2013 WL 5481997 (10th Cir. Oct. 3, 2013);

Compl. for Declaratory & Injunctive Relief at J 3, Korte

v. U.S. Dep’t of Health & Human Servs., 912 F. Supp.

2d 735 (S.D. Ill. 2012) (No. 3:12-CV-01072-MJR-PMF)

(asserting that Plaintiff Jane E. Korte and a second

individual plaintiff are “equal shareholders who

together own a controlling interest in Plaintiff Korte &

Luitjohan Contractors, Inc.”), rev’d sub nom., Korte v.

Sebelius, 735 F.3d 654 (7th Cir. 2013); see also Class

Action Compl. at 77 11-13, Little Sisters of the Poor

Home for the Aged, Denver, Colo. v. Sebelius, No. 1:13-

cv-02611-WJM-BNB (D. Colo. Sept. 24, 2013), 2013 WL

6839900 (describing two plaintiff non-profit

corporations that “are controlled by and associated

with the Little Sisters of the Poor, an international

Congregation of Catholic Sisters”), injunction pending

appeal granted (U.S. Jan. 24, 2014) (No. 13A691).

The federal court actions brought by these

women—along with opposition by women to the

Mandate more generally—demonstrates the flaw in

describing the Mandate as a “pro-woman” or “gender

equality” measure in any general sense of those terms.

C. The Mandate Benefits only Some, Not

All, Women. The Court Should Avoid

Characterizing the Mandate as a “Pro-

Woman” or “Gender Equality” Measure

in Any General Sense of those Terms.

The Court should resist characterizing the Mandate

as a “pro-woman” or “gender equality” measure in any

general sense of those terms. The Mandate advances

the interests of only that subset of women who value

free abortion drugs above public goods such as religious

freedom and limited government. The Mandate works

against the interests of those free-minded, independent

women whose personal, moral, religious, or political

values lead them to support a different balance of

policy considerations. As demonstrated by the many

female plaintiffs challenging the Mandate in federal!

courts, see supra at 15-18, the Mandate also works

against the interests of those women who depend upon

religious freedom to own or operate businesses in a way

that is consistent with their own values.

Amici strongly resist any suggestion by the

Government or others that women are a monolithic

class of self-interested voters who universally value

free abortion drugs more than religious freedom and

limited government. Amici respectfully urge the Court,

in analyzing the interests asserted by the Government

for the Mandate: to accurately describe the limited

class of individuals that purportedly benefit from the

Mandate; to recognize that many women oppose the

Mandate and in some cases are directly harmed by it;

and to remember that not all women conform or desire

to conform their beliefs, values, or actions to the

Government’s viewpoint on abortion and religious

freedom.

CONCLUSION

The Court should protect religious freedom by

ruling in favor of the nongovernment parties.

Respectfully submitted,

David R. Langdon

Counsel of Record

Langdon Law LLC

8913 Cincinnati-Dayton Rd.

West Chester, OH 45069

(513) 577-7380

dlangdon@langdonlaw.com

Rita M. Dunaway

8604 Staples Mill Road

Henrico, VA 23228

January 28, 2014

Thomas M. Messner

1707 L St. NW, Suite 550

Washington, DC 20036

Counsel for Amici Curiae

APPENDIX

TABLE OF CONTENTS

Appendix A: List of female state-level legislators

and one executive official joining brief

as a Coalition of State Legislative and

Executive Branch Officials ..... App. 1

App. l

APPENDIX A

The female state-level legislators and one executive

branch official who join this brief as a Coalition of State

Legislative and Executive Branch Officials include the

Honorable:

Sen. Elsie Arntzen (R-MT)

Del. Kathy Afzali (R-MD)

Rep. Nancy Ballance (R-MT)

Sen. Debby Barrett (R-MT)

Sen. Nancy Barto (R-AZ)

Rep. Joanne Blyton (R-MT)

Rep. Wanda Brown (R-MO)

Sen. Dee Brown (R-MT)

Rep. Christy Clark (R-MT)

Rep. Terri Collins (R-AL)

Rep. Debra Conrad (R-NC)

Rep. Jane Cormier (R-NH)

Sen. Margaret Dayton (R-UT)

Lt. Gov. Sue Ellspermann (R-IN)

Rep. Ellie Espling (R-ME)

Sen. Jennifer Fielder (R-MT)

Rep. Diane Franklin (R-MO)

Rep. Bette Grande (R-ND)

Rep. Stacey Guerin (R-ME)

Rep. Jenna Haggar (R-SD)

Rep. Kristin Hansen (R-MT)

Rep. Pat Hurley (R-NC)

App. 2

Rep. Pat Ingraham(R-MT)

Rep. Stephanie Klick (R-TX)

Sen. Joyce Krawiec (R-NC)

Sen. Shantel Krebs (R-SD)

Rep. Sarah Laszloffy (R-MT)

Rep. Jodie Laubenberg (R-TX)

Sen. Mary Lazich (R-WI)

Rep. Donna Lichtenegger (R-MO)

Asm. Alison Littell McHose (R-NJ)

Rep. Melissa Magstadt (R-SD)

Del. Susan McComas (R-MD)

Rep. Pat McElraft (R-NC)

Rep. Donna Oberlander (R-PA)

Rep. Betty Olson (R-SD)

Rep. Lenette Peterson (R-NH)

Sen. Shirley Randleman (R-NC)

Rep. Kathy Rapp (R-PA)

Rep. Courtney Rogers (R-TN)

Rep. Lori Saine (R-CO)

Rep. Jacqueline Schaffer (R-NC)

Rep. Donna Sheldon (R-GA)

Sen Margaret Sitte (R-ND)

Del. Kathy Szeliga (R-MD)

Sen. Janna Taylor (R-MT)

Rep. Wendy Warburton (R-MT)

Sen. Kimberly Yee (R-AZ)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.