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Hobby Lobby Granted Full Appeals Court Hearing on Mandate Challenge

by Steven Ertelt | Washington, DC | LifeNews.com | 3/29/13 3:01 PM

National

The 10th Circuit Court of Appeals today granted Hobby Lobby’s petition for a full hearing on its appeal of a judge’s decision requiring the Christian-owned and operated business to comply with the Obama Administration’s HHS mandate.

The appellate court agreed to an en banc hearing and agreed to place Hobby Lobby’s appeal before the entire court rather than the usual three-judge panel. The full court will now consider whether to halt enforcement of the HHS mandate, which forces Hobby Lobby Stores, to provide and pay for emergency contraceptives, such as the “morning-after pill” and “week-after pill”, in violation of the religious beliefs of its owners, the Green family.

The court also announced it will expedite oral arguments, with a hearing date expected soon.

“We are grateful that the court granted Hobby Lobby’s petition,” said Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty.

He told LifeNews: “Full court review is reserved only for the most serious legal questions. This case asks whether the First Amendment protects everyone’s right to religious freedom, or whether it leaves out religious business owners like the Greens.”

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In December, a two-judge panel of the 10th Circuit denied Hobby Lobby’s request to temporarily stop enforcement of the abortion pill mandate. Now, nine 10th Circuit judges will hear Hobby Lobby’s case. Arguments are expected to take place this Spring.

The mandate 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.”

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

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.

The Beckett Fund says there are 52 separate lawsuits challenging the HHS mandate, which is a regulation under the Affordable Care Act (aka “Obamacare”). The pro-life legal group, 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.

The mandate has engendered strong opposition from pro-life groups and Catholic and evangelical Christian companies that do not want to be compelled to pay for drugs for employees that may cause abortions.

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