Reluctant litigants: Hahn family takes its pro-life stance, and Conestoga Wood Specialities, to the Supreme Court
Posted: Thursday, March 20, 2014 12:45 pm | Updated: 2:03 pm, Fri Mar 21, 2014.
Editor’s note: This is the first in a series of stories that will be published on LancasterOnline, Intelligencer Journal/Lancaster New Era and Sunday News in the run-up to Tuesday’s oral arguments before the U.S. Supreme Court in the case of Conestoga Wood Specialties v. Kathleen Sebelius.
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As he circulated among supporters during the Pennsylvania Family Institute‘s annual banquet, Michael Geer, president of the Christian-right advocacy group, greeted a troubled Norman Hahn.
It was September 2012, and Hahn, founder of 1,053-employee Conestoga Wood Specialties in East Earl, was worried about government intrusion into his business and faith.
Under the Affordable Care Act, Hahn’s company and other large, secular companies were newly required to cover emergency contraception in their health plans.
Hahn is a conservative Mennonite who opposes abortion and believes emergency contraception could similarly terminate pregnancies. Yet to not offer the coverage would expose for-profit Conestoga Wood to devastating fines.
“I don’t know what I can do,” said Hahn, as Geer remembered the conversation. “Is there any way you can help?”
Geer wasn’t sure, but he relayed Hahn’s concern to attorney Randall Wenger, who specializes in religious freedom cases.
The first step
Wenger met with the Hahn family, recommended they seek a temporary restraining order, and with their approval took the first step in a momentous legal journey that has reached the highest court in the land.
At 10 a.m. Tuesday, when the marshal cries the U.S. Supreme Court into session and Chief Justice John Roberts and eight associate justices take their seats behind a raised mahogany bench for oral arguments, the national spotlight will fall upon Hahn, 77, and the stand he and his family are taking for religious liberty.
The arguments will last only an hour. No decision is expected before June.
At issue is whether for-profit corporations that espouse religious convictions are entitled to exemptions from certain laws, much like churches, under the First Amendment’s free exercise clause and the federal Religious Freedom Restoration Act.
The Obama administration, acknowledging the objections some churches and faith-based nonprofits have to contraception, offered them exemptions or accommodations.
But in front of the Supreme Court, Solicitor General Donald B. Verrilli Jr. will argue for the government that similarly granting a religious exemption to a for-profit corporation that makes components for kitchen cabinets runs counter to tradition, legal precedent and Congress’ intent.
• The concerns of women’s health advocates
• Religious freedom as seen by Christian businesspeople
• Conestoga Wood business facts and timeline
• The morning-after pill: What science says
• Live coverage from the U.S. Supreme Court
• Law professors weigh in
• The top 5 court precedents
• You, too, can think like a Supreme Court justice
Coverage so far
Key court filings
The case has become one more skirmish in the culture war. The religious right sees the government trampling freedoms. But the prospect of workers being denied coverage has alarmed advocates of reproductive rights and gender equity.
Across the country, the issue is most widely identified with Hobby Lobby, the Oklahoma-based crafts chain, which also sued the government. But because the Hobby Lobby and Conestoga Wood issues are identical, the Supreme Court consolidated the cases for Tuesday’s arguments.
Evidence of the strong interest in the cases is the 81 amici, or friend-of-the-court, briefs that groups ranging from Ovarian Cancer National Alliance to Texas Black Americans for Life have filed in hopes of swaying the justices.
While 81 is not a record, most Supreme Court cases attract only a dozen or so amici briefs, according to veteran Supreme Court reporter Lyle Denniston.
Many law professors will be closely following the case.
“Hobby Lobby and Conestoga Wood are unusual among for-profits,” said Richard Garnett, a professor at Notre Dame School of Law. “They can plausibly say, ‘We have a religious ethos that is inconsistent with the Affordable Care Act.’ ’’
But Marci Hamilton, a professor at Cardozo School of Law, warns that if the for-profit companies win, “we’ll all be waiting to see … which company makes the next assertion of medical care they don’t want to cover. My assumption is women and children will be the ones hurt the most.”
When the Hahns took their first step to assert their rights by filing suit in U.S. District Court in Philadelphia on Dec. 4, 2012, the move came only after prayerful consideration.
“As Mennonites, they’re not thrilled about going to court,” said Wenger, chief counsel for the Independence Law Center in Harrisburg, which is affiliated with Pennsylvania Family Institute. “They’re probably the most reluctant clients I’ve ever encountered.”
Irvin Weaver Jr., an owner of Weaver’s Store in Brecknock Township who attends Lichty Mennonite Church with Anthony Hahn, Conestoga Wood’s CEO, said, “A core Anabaptist belief is to not become involved in the government, but to submit to authority and live a quiet, peaceful life.”
Weaver said the Hahns decided they had to challenge the government and defend religious liberty, but the choice was not easy. They certainly never thought they’d end up before the Supreme Court.
Neither did Wenger, their attorney.
Wenger, in fact, was hopeful of a quick win in district court.
Five months before the Hahns filed suit, a federal judge in Colorado had ruled for a company owned by a Catholic family, giving it a temporary reprieve from the contraception requirement. Wenger thought that decision boded well for Conestoga Wood.
“It didn’t seem to us to be a novel idea that a corporation should be able to engage in religious liberty,” Wenger said. “This will be easy. We can get an injunction.”
Wenger grew more optimistic on Dec. 28, 2012, when District Judge Mitchell S. Goldberg gave Conestoga Wood a two-week reprieve from having to comply with the Jan. 1, 2013, start of the contraception requirement.
The judge’s restraining order temporarily stopped the government from levying ruinous fines of $100 per day, per employee, for a total of $95,000 a day. (At that time, the workforce numbered 950.)
“We were really encouraged,” Wenger said. “In all of my experience, when you get a judge to issue a temporary restraining order, one of the elements is likelihood of prevailing on the merits.”
On Jan. 4, 2013, attorney Charles W. Proctor III, of Chadds Ford, working with Wenger, argued the case before Goldberg. Anticipating the judge’s decision, Wenger wrote a press release declaring victory. He never got to issue it.
Work to do
A week after the hearing, Goldberg ruled against Conestoga Wood, denying a preliminary injunction. When he got over his shock, Wenger knew he had work to do.
He and Proctor got the Hahns’ OK and quickly appealed to the 3rd U.S. Circuit Court in Philadelphia. When that court, in a 2-1 ruling issued last July 26, again sided with the government and then refused a month later to grant a hearing before all 12 active 3rd Circuit judges, the Hahns’ last hope was the Supreme Court.
Imbued by a faith tradition steeped in humility and service, the Hahn family declined to be interviewed for this story and have shunned most other media requests.
In a brief interview last December with Kathryn Jean Lopez on National Review Online, Anthony Hahn, Conestoga Wood’s CEO and president since 2003, spoke of human life as God’s sacred gift and of faith’s central role in his life.
“We don’t just live our Christian life at home and at our church,” he said. “We live it every day of our lives, including at work. While we’d rather not be in court, it was the only way to protect this way of life.”
Those who know the Hahns say their faith regularly enters into business decisions, such as closing Sundays, even idling their long-distance trucks. Avoidance of publicity is also consistent with who they are.
“They’re not out rallying people to become involved on their behalf,” said Lloyd Hoover, executive director of The Potter’s House transitional home for ex-offenders. “That’s not the way they are motivated.”
What matters to the Hahns, they say, is growing their multi-state business — which Norman, the family patriarch, started in a garage in 1964 — contributing to their community and supporting Christian causes.
Video: Anthony Hahn speaks to the Alliance Defending Freedom
Norman, for example, served on the board of Gehmans Mennonite School of Brecknock Township for many years. His son, Anthony, who was a board member for 18 years, followed him.
“He was very vocal about the school’s direction as far as morals and beliefs and guidelines,” school administrator Michael Burkholder said of Anthony.
“He’s a strong leader that knows what he believes and where he wants to go as a person and a family, and he’s not ashamed of that,” Burkholder said. “He lives his beliefs.”
Hoover said the Hahns have “a strong belief that they’re being blessed by the community, and they need to show their support to the community.”
Evidence of the Hahns’ desire to witness for their faith is their engagement in philanthropy.
Norman and his wife, Elizabeth, for example, oversee a family foundation that contributed more than $1.1 million to 20 nonprofits between 2010 and 2012. The Pennsylvania Relief Sale, benefiting Mennonite Central Committee, was the top recipient, receiving $150,000 over those three years. Three organizations received $125,000 during those years: Christian Aid Ministries of Berlin Ohio, Clinic for Special Children of Strasburg, and Wycliffe Bible Translators of Locust Grove.
Separately, the Hahns have financially supported the political campaigns of a handful of Republicans. Norman, for example, contributed $10,000 to Lynn Swann’s race for governor in 2006, $2,500 to Rick Santorum’s race for the presidency in 2011, and $1,000 to Gordon Denlinger’s race for state House in 2006.
Hahn’s sons, Anthony and Lemar, have contributed lesser amounts.
After the Hahns had exhausted their appeal rights before the 3rd Circuit, their attorney, Wenger, asked the family for approval to appeal to the Supreme Court.
“The response that I received,” Wenger said, “was, ‘Oh, well, I guess we can do that. We really need to. But, great, now it’s the Mennonite family going to the Supreme Court.’ ’’
Wenger said he understood and appreciated the family’s reluctance.
“They felt they had a duty to do it, not that they’re somehow trying to get in the limelight, or that they’re angry or anything of that sort that motivates people to go to court,” he said. “They would have preferred for somebody else to have come along and won this previously so they wouldn’t have to be the ones that are up there.”
Hoover, of The Potter’s House, agreed the Hahns take no delight in contesting federal health care policy before the high court. Just the opposite.
“They grieve the fact that they have to take legal action,” Hoover said. “They believe that our nation has been founded on religious freedom and that should not be something we should have to fight for. It should be our privilege. They grieve that they have to contend for what has been a norm in our world for so long.”
Since January 2013, after the district judge ruled against Conestoga Wood, the company has been, under protest, covering emergency contraceptives in their health plan.
According to Wenger, the Hahns were under pressure from the insurance company to cover contraception while the case was under appeal because the insurer, in addition to Conestoga Wood, would face the same $95,000 a day fine.
“They said, ‘You have to do this,’ ’’ Wenger said. “So, reluctantly, that coverage is in (Conestoga Wood’s) plan now.”
What will the Hahns do if they lose in the Supreme Court?
“Frankly, I don’t know,” Wenger said. Having to continue to fund emergency contraception would be an ever-present burden on their religious convictions, he said.
“They are pro-life across the board, including their stand against capital punishment and going to war,” Wenger said. “This has been really difficult for them. I don’t know how they are going to handle (a loss) going forward. So we just need to win it.”