Is the contraception/abortifacient mandate, brought to us by the U.S. Department of Health and Human Services (HHS), doomed?  Last week, a U.S. federal appeals court, in an order involving O'Brien Industrial Holdings v. HHS, spared O'Brien, a Catholic employer, from the HHS mandate for the appeal's duration.  This order demonstrated that O'Brien and other religious employers have strong lawsuits against the mandate.  However, with Supreme Court Chief Justice John Roberts's inclination to call such mandates as ObamaCare's constitutional, the HHS mandate could survive the Supreme Court. 

O'Brien's and other religious employers' lawsuits against the HHS mandate argue several claims, including that HHS is violating the following:

• The First Amendment's protections of "free exercise [of religion]," no "establishment of religion," and free speech
• The Religious Freedom Restoration Act
• Administrative laws, such as the Weldon Amendment, that help protect religious and other liberties

This article focuses only on how O'Brien and other employers could strengthen their arguments dealing with the First Amendment's "free exercise [of religion]."  O'Brien and others interpret the "free exercise [of religion]" to simply be the practice -- that is, active following -- of religion.  For instance, O'Brien argues that his "free exercise [of religion]" saves him "from providing coverage for ... 'contraceptive methods, sterilization procedures, and patient education and counseling related to such procedures.'"  In Weingartz Supply Company v. Kathleen Sebelius, another of the few challenges against the HHS mandate with legal success thus far, Weingartz alleges that his Catholicism prohibits him from "purchasing or providing coverage for contraception, abortion, or related education and counseling."  In Hercules Industries, Inc. v. Kathleen Sebelius, a successful challenge in a lower court, the owners of Hercules suggest that their Catholicism forbids them "from providing coverage for abortifacients, contraception, sterilization, and related education and counseling[.]"

All these employers suggest that "providing" or "purchasing" something they consider immoral is not actively following or practicing their religion. 

However, O'Brien and other religious employers should note that there's more to the "free exercise [of religion]" than just the practicing of religion.  As I argued before, my interpretation of the free exercise clause's original meaning is to forbid Congress from impeding individuals' liberty to profess and practice their religion.  Using Samuel Johnson's A Dictionary of the English Language (1755), the most widely used dictionary at the First Amendment's ratification,

I argued that the Founders understood "exercise" of religion to mean "to do [religious practices], not merely to profess [religious beliefs]"¹.  Johnson defined "to profess" as, among other definitions, "to declare openly" and "to make a show of any sentiments by loud declarations," with "declare" taking such definitions as "to make known," "to publish," "to proclaim," and to "show in open view."

Thus, O'Brien and other employers could argue that, under the "free exercise [of religion]," the HHS mandate will also violate their profession of religion.  HHS will force Catholic and other religious employers to profess the HHS view that employers should endorse abortifacients, that an "unintended pregnancy is a health condition of women," and that "all pregnancies should be intended."  Accordingly, HHS will force O'Brien and others to "declare openly," "proclaim," and "publish" such "health" options as the following emergency contraceptives, which can actually be abortifacients that prevent unborn children from implanting in wombs to further develop:

Source: Aetna, 2012

O'Brien and other religious employers have argued that HHS violations of their professions of religion infringe their free speech but not "free exercise [of religion]."  For instance, O'Brien argued that HHS is compelling his speech of "education and counseling related to contraception, sterilization, and abortion."  Weingartz contended that HHS has violated his free speech only by forcing him to "profess, educate, lecture, give presentations, and engage in ... violations of ... [his] religious beliefs."  And Hercules alleged "education and counseling regarding contraception and abortion-causing drugs forces [its owners] ... to speak ... contrary to ... [their] religious beliefs."

However, O'Brien and other religious employers could strengthen their "free exercise [of religion]" argument by using this article's vision of the free exercise clause's original meaning.  These employers could argue that the HHS violations of their professions of religion violate their "free exercise [of religion]" and free speech. 

Daniel Smyth blogs at LibertyBlog.org and danielsmyth.org.

¹The founding era has much other evidence proving that the "free exercise [of religion]" includes the profession of religion.  For instance, as Michael W. McConnell, professor of law at Stanford Law School, has mentioned, many state constitutions before the Founding included the profession of religious beliefs as part of the free exercise of religion.  Professor McConnell noted the following: "New York's 1777 Constitution was typical: [T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State."  See Michael W. McConnell, "The Origins and Historical Understanding of Free Exercise of Religion," Harvard Law Review 103(7): 1456, 1990.