Hobby Lobby Takes HHS Mandate Battle Against Obama Admin to Appeals Court

National   Steven Ertelt   May 24, 2013   |   10:26AM    Denver, CO

Attorneys for Christian-owned craft store Hobby Lobby took on the Obama administration in court yesterday in its attempt to stop massive fines against it for not complying with the HHS mandate.

The company has filed a lawsuit over whether or not the HHS Department can force it to comply with the mandate that compels it to pay for birth control and drugs that may cause abortions. The Becket Fund for Religious Liberty represented Hobby Lobby Stores before the an en banc hearing of the 10th Circuit Court of Appeals.

World Magazine has more on how the hearing went:

Although Hobby Lobby is a business, its founders’ faith permeates everything the company does, argued Kyle Duncan, one of the lawyers from The Becket Fund for Religious Liberty, which represents the Green family.

The stores are a “profit-making company, yes, but also a ministry,” Duncan said.

Today’s appearance before the full 10th U.S. Circuit Court of Appeals marks the third time the company has made its case in the courts. If it loses this round of its religious liberty fight, it will appeal to the U.S. Supreme Court.

Lawyer Alisa Klein, arguing on behalf of the government, said allowing Hobby Lobby to avoid covering contraceptive devices it doesn’t like would in effect impose the Green’s religious beliefs on their employees: “If you make an exemption for the employer, it comes at the expense of the employee.”

If it doesn’t comply with the law, Hobby Lobby faces fines of $1.3 million a day. The law went into effect Jan. 1, but the company restructured its insurance plan to delay compliance until July. The company has about 13,000 full-time employees in 41 states.

“When the government threatens to ruin a family’s business unless they renounce their faith, the pressure placed on them is unmistakable,” Hobby Lobby’s lawyers wrote in a brief filed in the case. “In other words, ‘Your business or your religion’ is just as effective a threat as ‘Your money or your life.’”

From another report:

Duncan cited the Citizens United campaign-finance decision that said corporations have constitutional protections.

“We don’t say, well, a corporation can’t exercise a right because it’s in corporate form,” Duncan said.

“Is religion the kind of right can only be exercised by a natural person? Well, the question nearly answers itself. … It’s not a purely personal right.”

A lawyer for the U.S. Department of Justice argued that allowing for-profit corporations to exempt themselves from requirements that violate their religious beliefs would be in effect allowing the business to impose its religious beliefs on employees.

Klein talked about an imaginary Hobby Lobby employee who is told by her doctor she needs a type of intrauterine contraceptive that she is entitled to having covered under the new health care law. But because of her employers’ religion, “the next sentence would be, unfortunately you have to pay $500 to $900,” Klein argued.

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.