Business Loses First Fight Against HHS Mandate, Battle Continues

State   |   Steven Ertelt   |   Dec 17, 2012   |   1:58PM   |   Washington, DC

An Illinois-based business lost its first battle in court against the HHS mandate on Friday.

An Illinois federal district court denied a preliminary injunction sought by a for-profit construction business claiming that its First Amendment rights are being violated because it does not want to be forced to pay for drugs for their employees that may cause abortions.

According to one report on the case:

The court held that the exercise of religion is a purely personal right; corporations cannot exercise religion even though they may advance a belief system.  However, the court held that because the religious and financial interests of the individual controlling shareholders and the family-owned S corporation involved in the case are virtually indistinguishable, the shareholders satisfy the third-party standing test and can present the Free Exercise Clause and RFRA claims.

Moving to the merits, the court rejected plaintiffs’ 1st Amendment claim, finding it likely that the mandate is a neutral law of general applicability that only incidentally burdens free exercise.  Moving to plaintiffs’ claim under the Religious Freedom Restoration Act, the court concluded that the mandate does not create a “substantial burden” on plaintiffs’ free exercise rights.

Late Friday, the Obama administration told a three judge panel from a federal appeals court that it wants lawsuits related to the pro-abortion HHS mandate put on hold. Administration officials claim the mandate will be revised to provide more options for religious employers.

During a hearing in the U.S. District Court of Appeals for the District of Columbia, Justice Department attorney Adam Jed said HHS will release a revised version of the mandate during the early months of next year and will make it final by August 2013. That would come before the one year “safe harbor” protections that pro-life groups say is so limiting it offers virtually no protection for such groups, expires.

Three federal judges discussed whether to revive one of the major lawsuits filed against the Obama administration’s HHS mandate. Earlier, 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. 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.

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.

On Friday, Duncan said the HHS mandate is “a violation of their religious liberty.”

The panel of judges probably will not issue a decision on the merits of the case soon or whether it was prematurely dismissed by the lower court but will likely have it be held “in abeyance” while the Obama administration revises the rules.

Judge A. Raymond Randolph sounded like he agreed that the HHS mandate violates Belmont Abbey College’s First Amendment rights.

“Do you concede that the rule in its present form is unconstitutional?” Randolph pointedly asked Justice Department attorney Adam C. Jed.

Jed disputed the point, and said the Obama administration intended to publish revised rules before next April. Administration officials say the revised rules will offer stronger protections for religious schools and employers that seek exemptions from the contraception mandate.

“The government has said from the very beginning that it’s going to take seriously the concerns,” Jed said.



The D.C. Circuit Court of Appeals is the first appeals court to consider whether the government’s one-year ‘safe-harbor’ adequately protects religious employers like Belmont Abbey College and Wheaton College from the abortion-drug mandate which forces the Catholic and Evangelical institutions to violate their deeply held religious beliefs or pay millions in fines each year.

After receiving a firestorm of opposition to the HHS mandate, the government created the ‘safe-harbor’ to delay enforcement against non-profit religious organizations while the government “considered” some future “accommodation,” leading two lower courts to dismiss Belmont Abbey and Wheaton College’s lawsuits as premature.

Recently, a federal judge in New York became the first to rule against the government on this issue holding that the “safe harbor” and promised “accommodation” were inadequate to protect religious organizations from suffering harm. The court remarked that, “There is no ‘Trust us changes are coming’ clause in the Constitution.”