Supreme Court Showdown Looming on Battle to Stop Obamacare’s HHS Mandate

National   William Saunders and Mailee Smith   Sep 18, 2013   |   12:02PM    Washington, DC

In a good news-bad news scenario, businesses troubled by Obamacare’s anti-life provision have gotten one step closer to the high court.

The Sixth Circuit Court of Appeals issued a decision this week in Autocam Corporation v. Sebelius, one of 37 cases brought by for-profit businesses challenging the Obama Administration’s “HHS Mandate”—that portion of the Affordable Care Act (“Obamacare”) that forces employers to provide insurance coverage for life-ending drugs and devices without regard to the employers’ consciences or religious beliefs.

The bad news is that the Sixth Circuit upheld a lower court opinion that will force the plaintiffs to choose between abiding by the mandate or facing potentially ruinous fines. The Autocam Corporation, which is controlled by members of a devout Catholic family, could be assessed fines of $19 million a year if it does not comply with the mandate.

The good news is that a Supreme Court showdown looms, one that plaintiffs challenging the mandate have a great chance to win.

At the heart of the Autocam case and the Sixth Circuit’s decision is the Religious Freedom Restoration Act (RFRA), which prohibits the government from substantially burdening a person’s exercise of religion.

But in Autocam, the Sixth Circuit ruled that a for-profit company does not qualify as a “person” under RFRA and therefore cannot use it to challenge the HHS mandate. The Third Circuit reached a similar conclusion recently in Conestoga Wood Specialties Corp v. Sebelius. On the other hand, the Tenth Circuit ruled in Hobby Lobby Stores v. Sebelius that for-profit businesses are protected by RFRA.

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This “Circuit spilt”—or disagreement between the Circuits—makes it more likely that the U.S. Supreme Court will agree to hear one or more appeals in these cases. Hundreds of plaintiffs have their livelihoods on the line, and a decision from the Supreme Court is needed.

And there is more good news. To date, there are at least 67 cases and over 200 defendants challenging the HHS Mandate. Of those cases, 37 involve for-profit businesses. There have been rulings touching on the merits in 32 of those 37 cases—and courts have ruled in favor of the private businesses 26 times. The Sixth Circuit’s ruling in Autocam does not change the score because it was merely affirming one of the few losses on our side.

While the fight in the courts regarding the HHS mandate is far from over, the momentum is clearly in favor of freedom of conscience.