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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0929%3A91

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 571 U.S. 1067

## Text

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,

Ve

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 * =

i

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

il

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

lV

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

Vv

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

18

. 16

16

16

17

16

me

2

v1

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 . ... ............

a

15

17

17

13

14

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

14

15

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

1
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.

2

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).

3

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.

4
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

5

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:

6

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.

7

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.

8

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

9

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

10

(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

11

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.

12

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.

13
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).

14

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.

15

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).

16

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);

17

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-

18

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.

i9

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

20

Thomas M. Messner
1707 L St. NW, Suite 550
Washington, DC 20036

Counsel for Amici Curiae

APPENDIX

i
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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0929%3A91. Public record. Not legal advice.