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Obama Admin’s HHS Mandate Revision Likely Excludes Hobby Lobby

by Steven Ertelt | Washington, DC | LifeNews.com | 2/1/13 12:06 PM

National

The Obama administration is expected to release revisions to the HHS mandate today, which pro-life advocates oppose because it forces religious groups to pay for birth control and drugs that may cause abortions.

Thanks to a number of decisions in court related to lawsuits filed against the mandate bu dozens of religious businesses and organizations, the Obama administration is under court order to revise the mandate. But the changes may not define religious groups in a way that actually protects them legally from being forced to comply with the mandate.

Although the revisions are expected to provide some additional protections for religiously-affiliated organizations, companies owned and operated by people with religious objections to the mandate, most notably Hobby Lobby, will still be left out in the cold.

According to a CNN report on the expected changes:

Religiously affiliated organizations will be able to opt out of providing their employees with insurance coverage for contraceptives under updates to an Obama administration mandate that the Department of Health and Human Services is expected to unveil on Friday, according to two sources.

The administration is expected to detail how it will handle two of the more controversial situations, said a source familiar with Friday’s announcement.

“Religiously affiliated organizations will be given the option of exempting themselves from the requirement of providing their employees with contraceptive access or service that they are morally opposed to,” said the source.

If an institution opts out of paying for contraceptive coverage, individual employees will get coverage through a third entity. That separate exchange, said the source, would be paid for by the insurance company.

The second proposal would address self-insurers, organizations that are large enough to pay for their own health care costs, such as a large Catholic diocese.

Those groups, according to the source, will be exempt from having to provide contraceptives, but their employees would be allowed access to contraceptive coverage through other means.

Hobby Lobby, the Christian craft company, was forced to alter its employee health insurance plan in order to avoid millions of dollars in fines each and every day it refuses to comply with the HHS mandate.

Hobby Lobby attorney Peter Dobelbower said the company will shift the plan year for employee health insurance that will delay the implementation date of the plan from January 1, so it does not coincide with the HHS mandate.

Following a decision by Supreme Court Justice Sonia Sotomayor denying Hobby Lobby’s request for an exemption from the Obama administration’s HHS mandate, the Christian retail company said it will defy the mandate.

As LifeNews reported, Supreme Court Justice Sonia Sotomayor has refused to act favorably on an emergency appeal Hobby Lobby stores filed to stop enforcement of the HHS mandate against it.

After a federal court denied a request to temporarily stop enforcement of the abortion pill mandate against the Christian-operated business Hobby Lobby, it took its HHS mandate lawsuit to the Supreme Court. Sotomayor denied its request to block the mandate and the millions of dollars in fines it will be subjected to starting January 1 for not complying.

Sotomayor said Hobby Lobby did not show it met the legal standard for blocking enforcement on an emergency basis, but said the company can continue with its lawsuit in lower court.

Kyle Duncan, an attorney for the pro-life legal group Becket Fund for Religious Liberty, said in a statement that hobby Lobby doesn’t plan to offer its employees insurance that would cover the drug while its lawsuit is pending.

“The company will continue to provide health insurance to all qualified employees,” Duncan said. “To remain true to their faith, it is not their intention, as a company, to pay for abortion-inducing drugs.”

The most recent polling data from December 2012 shows Americans support a religious exemption to the mandate.

In December, a federal appeals court ruled that the Obama administration can force the Christian-owned-and-operated business to obey the HHS mandate that compels it to pay for birth control and drugs that may cause abortions for its employees.

Duncan says the family that runs Hobby Lobby is upset the appeals court did not support its case against the HHS mandate, which it says would force the Christian-owned-and-operated company to provide the “morning-after pill” and “week-after pill” in its health insurance plan, or face crippling fines up to $1.3 million per day.

“The Green family is disappointed with this ruling,” said Duncan. “They simply asked for a temporary halt to the mandate while their appeal goes forward, and now they must seek relief from the United States Supreme Court. The Greens will continue to make their case on appeal that this unconstitutional mandate infringes their right to earn a living while remaining true to their faith.”

He said the 10th Circuit judges denied the motion calling the religious burden to the Green family “indirect and attenuated.”

“It is by God’s grace and provision that Hobby Lobby has endured,” said David Green, founder and CEO. “Therefore we seek to honor God by operating the company in a manner consistent with Biblical principles.”

Earlier, a different federal appeals court reinstated two of the top legal challenges to the mandate. The D.C. Circuit Court of Appeals handed Wheaton College and Belmont Abbey College a major victory in their challenges to the HHS mandate. Previously, two lower courts had dismissed their lawsuits as premature because the Obama administration is expected to revise the mandate next year. However, the appellate court reinstated those cases.

The ruling also rdered the Obama Administration to report back every 60 days—starting in mid-February—until the Administration makes good on its promise to issue a new rule that protects their religious freedom. The Obama administration was ordered to rewrite the mandate by March 2013.

Following a new ruling by the 8th Circuit federal appeals court granting temporary relief from the HHS Mandate to a Missouri business, the 10th Circuit denied Hobby Lobby’s request for identical relief in their appeal. The company is concerned about crippling fines of up to $1.3 million per day if they do not comply with the HHS mandate against their religious beliefs.

The lower court, which, in November, denied Hobby Lobby emergency relief, relied heavily on the lower court’s dismissal of the O’Brien Business’ case on its ruling. When a federal appeals court reversed the lower court decision in the Missouri case, Hobby Lobby’s attorneys hoped the 10th circuit will reverse in its case as well.

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The privately held retail chain with more than 500 arts and crafts stores in 41 states filed a lawsuit against the Obama administration over its HHS mandate. The company says it would face $1.3 million in fines on a daily basis starting in January if it fails to comply with the mandate, which requires religious employers to pay for or refer women for abortion-cause drugs that violate their conscience or religious beliefs.

“Today’s shocking decision from the 10th Circuit is an utter rebuke of religious freedom. Hobby Lobby now faces fines of up to 1.3 million dollars a day if it’s owners refuse to violate their consciences by paying for and providing abortion-causing drugs for its employees. This is a dereliction of duty of the part of the courts to protect IRS citizens from bureaucratic bullies who care little for the First Amendment,” said Ashley McGuire, Senior Fellow with The Catholic Association, after the appeals court ruling in that case.

The lawsuit was filed in the US District Court for the Western District of Oklahoma and U.S. District Judge Joe Heaton issued a ruling rejecting Hobby Lobby’s request to block the mandate. Judge Heaton said that the company doesn’t qualify for an exemption because it is not a church or religious group.

“Plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion,” the ruling said.

Heaton wrote that “the court is not unsympathetic” to the company’s desire to not pay for abortion-causing drugs but he said the Obamacare law “results in concerns and issues not previously confronted by companies or their owners.”

The appeals brief reads in part: “[I]n less than six weeks, [the Green family] must either violate their faith by covering abortion-causing drugs, or be exposed to severe penalties—including fines of up to $1.3 million per day, annual penalties of about $26 million and exposure to private suits.”

“The district court accepted that the Green family engages in a religious exercise by refusing to cover abortion-causing drugs in their self-funded health plan. There was thus no question that the Green family engages in ‘religious exercise,’” it adds. “[T]he Supreme Court has long rejected any distinction between “direct” and “indirect” burdens in evaluating whether regulations infringe religious exercise.”

Duncan said the judge’s decision did not question that the Green family has sincere religious beliefs forbidding them from providing abortion-causing drugs. The court ruled, however, that those beliefs were only “indirectly” burdened by the mandate’s requirement that [Hobby Lobby] provide free coverage for specific, abortion-inducing drugs in [the company’s] self-funded insurance plan.

Duncan previously talked about what the Obama administration told the court:

The administration’s arguments in this case are shocking. Here’s what they are saying: once someone starts a “secular” business, he categorically loses any right to run that business in accordance with his conscience. The business owner simply leaves her First Amendment rights at home when she goes to work at the business she built. Kosher butchers around the country must be shocked to find that they now run “secular” businesses. On this view of the world, even a seller of Bibles is “secular.” Hobby Lobby’s affiliate, Mardel, sells Bibles and other Christian-themed material, but because it makes a profit the government has now declared it “secular.”

The administration’s position here — while astonishing — is actually consistent with its overall view of the place of religion in civil society. After all, this is the administration who argued in the Hosanna-Tabor case last year in the Supreme Court that the religion clauses of the First Amendment offered no special protection to a church’s right to choose its ministers — a position that the Court rejected 9-0. This is the administration which has taken to referring to “freedom of worship” instead of “freedom of religion” — suggesting that religious freedom consists in being free to engage in private rituals and prayers, but not in carrying your religious convictions into public life. And this is the administration who crafted a “religious employer” exemption to the HHS mandate so narrow that a Catholic charity does not qualify for conscience protection if it serves non-Catholic poor people.

As you point out, the administration is trying to justify its rigid stance against religious business owners by saying otherwise they would become a “law unto themselves,” and be able to do all sorts of nasty things to their employees — like force them to attend Bible studies, or fire them if they denied the divinity of Christ. Nonsense. Hobby Lobby isn’t arguing for the right to impose the Greens’ religion on employees, nor for the right to fire employees of different religions. There’s already a federal law that protects employees from religious discrimination and that’s a very good thing. This case is about something entirely different:  it’s about stopping the government from coercing religious business owners. The government wants to fine the Greens if they do not violate their own faith by handing out free abortion drugs, and now it’s saying they don’t even have the right to complain in court about it.

There are now more than 40 separate lawsuits challenging the HHS mandate, which is a regulation under the Affordable Care Act (aka “Obamacare”). The Becket Fund led the charge against the unconstitutional HHS mandate, and along with Hobby Lobby represents: Wheaton College, East Texas Baptist University, Houston Baptist University, Belmont Abbey College, Colorado Christian University, the Eternal Word Television Network, and Ave Maria University.

Hobby Lobby is the largest and the biggest non-Catholic-owned business to file a lawsuit against the HHS mandate, focusing sharp criticism on the administration’s regulation that forces all companies, regardless of religious conviction, to cover abortion-inducing drugs. It has faced a small boycott from liberals upset that it would challenge the mandate in court.

The Obama admin says there is an exemption in the statute but Duncan says that is not acceptable.

“The safe harbor’s protection is illusory,” said Duncan. “Even though the government won’t make religious colleges pay crippling fines this year, private lawsuits can still be brought, schools are at a competitive disadvantage for hiring and retaining faculty, and employees face the specter of battling chronic conditions without access to affordable care.  This mandate puts these religious schools in an impossible position.”

Recently, a federal court stopped enforcement of the Obama administration’s abortion pill mandate against a Bible publisher which filed a lawsuit against it — the third such victory.