The Obama administration has appealed a July ruling that halted enforcement of the Obama administration’s abortion pill mandate against a Colorado family-owned business.
The mandate has generated massive opposition from pro-life groups because it forces employers, regardless of their religious or moral convictions, to provide insurance coverage for abortion-inducing drugs, sterilization, and contraception under threat of heavy penalties.
Alliance Defending Freedom attorneys obtained the first-ever order against the mandate on behalf of Hercules Industries and the Catholic family that owns it. The administration opposed the order, arguing, contrary to the U.S. Constitution, that people of faith forfeit their religious liberty once they engage in business.
Since Hercules Industries would be required to begin offering the new coverage when its self-insured plan renews on November 1, Alliance Defending Freedom has requested a preliminary injunction that could prevent the government from enforcing the mandate against the company by August 1, the date when the company would need to begin the process of making changes to its plan.
As is the case with many religious groups or employers, the mandate could subject the Newlands to millions of dollars in fines per year if they don’t abide by its requirements.
Now, in contradiction to the Obama administration’s recent claims of “unwavering” support for religious freedom, the president’s lawyers filed an appeal Tuesday of that order.
“Every American, including family business owners, should be free to live and do business according to their faith,” said ADF Senior Legal Counsel Matt Bowman. “The Obama administration claims ‘unwavering’ support for religious freedom, but this appeal demonstrates that the only thing unwavering is the administration’s tenacious opposition to that freedom.”
“The cost of religious freedom for this family could be millions of dollars per year in fines that would cripple their business and potentially destroy jobs if the administration ultimately has its way,” Bowman said. “In filing its appeal today, the administration sent a clear message that it wants to force families to abandon their faith in order to earn a living. That’s the opposite of religious freedom.”
On July 27, Alliance Defending Freedom attorneys obtained the first-ever order against the mandate on behalf of Hercules Industries and the Catholic family that owns it. The administration opposed the order issued in Newland v. Sebelius, arguing, contrary to the U.S. Constitution, that people of faith forfeit their religious liberty once they engage in business. The U.S. Department of Health and Human Services could subject the Newland family to millions of dollars in fines per year if they don’t abide by the mandate’s requirements.
The Colorado House of Representatives honored Hercules Industries last month for its many contributions to the community and its employees after the city and county of Denver backed out of a similar proclamation because of the business’s success in court.
The pro-abortion ACLU has criticized the ruling, saying, “This is not religious freedom, this is discrimination. Real religious liberty gives everyone the right to make their own decisions about their own health, including whether and when to use birth control. It doesn’t give anyone the right to impose their beliefs on others.”
But the The Becket Fund for Religious Liberty, also a pro-life legal group involved in the case, says the decision could spell the eventual overturning of the mandate itself.
“Judge Kane’s ruling today in favor of a religious for-profit plaintiff challenging the coercive HHS mandate got the law right. Religious liberty rights don’t stop at the store-front door,” said Hannah Smith, Senior Counsel at the Becket Fund for Religious Liberty. “This decision portends the demise of the current Administration’s attempts to drive religious activity from the public square and confine it within the four walls of a church.”
Alliance Defending Freedom attorneys are also litigating three other lawsuits against the mandate: one in Indiana on behalf of Indiana’s Grace College and Seminary and California’s Biola University; one in Pennsylvania on behalf of Geneva College and The Seneca Hardwood Lumber Company and its owners, the Hepler family; and one in Louisiana on behalf of Louisiana College. The lawsuits represent a large cross-section of Protestants and Catholics who object to the mandate.
The Becket Fund for Religious Liberty led the charge filing the first lawsuits against the HHS mandate representing five clients: Belmont Abbey College, Colorado Christian University, Eternal Word Television Network (EWTN), Ave Maria University, and Wheaton College. There are currently over 20 lawsuits pending around the country against the HHS mandate.
In his order, Senior Judge John L. Kane of the U.S. District Court for the District of Colorado said that the government’s arguments “are countered, and indeed outweighed, by the public interest in the free exercise of religion. As the Tenth Circuit has noted, ‘there is a strong public interest in the free exercise of religion even where that interest may conflict with [another statutory scheme]….’ Accordingly, the public interest favors entry of an injunction in this case.”
Bowman said Judge Kane explained that the government’s “harm pales in comparison to the possible infringement upon Plaintiffs’ constitutional and statutory rights.”
According to the brief Alliance Defending Freedom filed along with the motion requesting the injunction, “the mandate disregards religious conscience rights that are enshrined in federal statutory and constitutional law.” It also violates the First Amendment “due to its massive inapplicability and its discrimination among religions,” the brief explains.
Federal judges have dismissed two other lawsuits filed against the mandate.
In the second case, Judge James E. Boasberg of the D.C. Federal Court threw out the lawsuit Belmont Abbey College in North Carolina, the first plaintiff to file suit against the mandate, filed earlier this year. Judge Boasberg said he dismissed the lawsuit because the Obama administration is revising the initial rule it release forcing religious groups to pay for the drugs that violate their conscience and beliefs.
He wrote that he favored “deferring review until the agency’s position on exemptions to the contraceptive-coverage requirement is settled.”
After the first case was dismissed, Kyle Duncan, general counsel at the Becket Fund for Religious Liberty, attorneys for plaintiffs, said the decision turns on technicalities and doesn’t decide the merits of the dispute.
Luke Goodrich, Deputy General Counsel of the Becket Fund, which filed the lawsuit on behalf of Belmont Abbey College, a Catholic university, said before the decision he thought the Obama administrations argument will not stand up in court.
“It doesn’t argue that the mandate is legal; it doesn’t argue that the mandate is constitutional,” Goodrich said. “Instead, it begs the court to ignore the lawsuit because the government plans to change the mandate at some unspecified date in the future.”
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“Apparently, the administration has decided that the mandate, as written and finalized, is constitutionally indefensible,” said Hannah Smith, senior counsel at The Becket Fund for Religious Liberty “Its only hope is to ask the court to look the other way based on an empty promise to possibly change the rules in the future.”
In its legal papers, the Obama administration did not defend the constitutionality of the mandate, but said the lawsuit should be thrown out because the administration plans to revise the mandate to make it on insurance companies to pay for coverage rather than employers, who will still have to make referrals.
Obama’s February 10 “accommodation” came under increasing fire on numerous fronts. A diverse coalition of over 300 scholars and religious leaders have called the maneuver “unacceptable,” because it still forces many religious organizations to violate their core religious beliefs. The U.S. Conference of Catholic Bishops has also denounced it.
The panel that put together the mandate has been condemned for only having pro-abortion members even though polling shows Americans are opposed to the mandate.