With the October filing of a lawsuit by the Roman Catholic Archdiocese of Miami, the number of lawsuits challenging rules put forth under the Affordable Care Act (Obamacare) mandating that health plans must include morally objectionable benefits that has grown to thirty-seven.
Religious freedom and the First Amendment’s Free Exercise of Religion Clause have come under attack as a result of Obamacare. People of faith have united in lawsuits across the country to battle the assault on religious liberty. It is a fight that anyone, of any religious persuasion, should know about.
Regulation Requiring Providing Morally Objectionable Benefits
The issue in all 37 suits is a Health and Human Services Mandate requiring all health plans to offer:
“all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”
The Mandate requirements include Plan B (“the morning after pill”) and ella (“the week after pill”) among other methods of preventing pregnancy. Many religious institutions have moral objections to these and other methods required by the mandate. The mandate covers all employers including religiously based hospitals, schools & charities and private employers who operate their businesses guided by moral principles. The Mandate orders conduct conflicting with the religious beliefs of those operating such enterprises.
Substantial Penalty for Following Religious Beliefs
A significant penalty (or tax, thanks to Justice Roberts) is imposed for failing to comply with the regulation. It is $100/day per employee, or $36,500 per year. For some institutions, this could be millions of dollars for following their beliefs. As the rules stand now, there is a limited religious exception for actual church operations but not for religious organizations with educational or charitable missions or private businesses conducted according to a moral code.
The 37 legal actions include 110 plaintiffs of varying denominations, including four Protestant colleges. The diversity of the plaintiffs is demonstrated by suits filed by Ave Mana University in Naples. FL, Colorado Christian University in Lakewood, CO,, Grace Schools in Winona, IN, Louisiana Baptist College of Pineville, LA and the well-known arts and crafts chain Hobby Lobby. Court rulings have been issued in four of the cases to date.
Three Cases Dismissed on Technical Grounds
On August 24, 2012, US District Court Judge Ellen Segal Huvelle dismissed the lawsuit by Wheaton College, a Christian liberal arts college located in Wheaton, Illinois. Wheaton is represented in the case by the Beckett Fund for Religious Liberty. The suit contends that the above regulations issued pursuant to Obamacare violate the First Amendment, the Administrative Procedure Act, and the Religious Freedom Restoration Act.
On July 18, 2012, a suit by Belmont Abbey, a Benedictine college in North Carolina that shares the Catholic Church’s view that contraception, sterilization, and abortion are “grave sins” was dismissed by US District Judge James Boasberg. The Wheaton and Belmont matters are being appealed to the US Circuit Court of Appeals for the DC Circuit.
On July 17, 2012, a similar suit by Nebraska, six other states and several private parties was dismissed by US Senior District Judge Warren K. Urbom. All judges dismissed the cases for virtually identical reasons: that Health and Human Services promises not to enforce the rules for a year, and so any infringement on religious liberty is not to be worried about at the moment. Despite the promise to not enforce, the rules remain in place with the force of law. There is nothing to prohibit the government from changing its mind as to enforcement.
By allowing the government to prevail on Motions to Dismiss based upon how the government might conduct itself in the future, the judges became complicit in the attack on religious liberty.
A Victory for Religious Liberty In Colorado
The three cases above involved religious institutions or organizations. In Colorado, on July 27, 2012, Senior US District Court Judge John Kane issued an order prohibiting enforcement of the regulations against a private company, Hercules Industries. Hercules Industries manufactures and distributes heating, ventilation, and air conditioning products and equipment. The Alliance Defending Freedom represents Hercules and the Newland family.
The family owns and operates Hercules. The Newlands seek to run Hercules in a manner that reflects their sincerely held Catholic beliefs. Hercules maintains a self-insured group plan for its employees. Because the Catholic Church condemns the use of contraception, Hercules self-insured plan does not cover abortifacent drugs, contraception, or sterilization.
In issuing the order prohibiting the government from enforcing the HHS Mandate against the Newland family and its company, Judge Kane found the regulations placed a substantial burden on their exercise of religious liberty. It was a victory for founding principles.
The Vagaries of Litigation
In addition to the Beckett Fund for Religious Liberty and the Alliance Defending Freedom, The Heritage Foundation, Colson Center, American Center for Law & Justice, and Thomas More Law Center are involved in this battle which are dedicated to defending our freedoms.
The differing outcomes of the four cases with rulings to date demonstrate the problems with relying upon the courts. The only real protection is an engaged electorate that understands the stakes in an election and the election of government officials that will protect our rights in the legislature, enforce our rights in the executive and hold judges accountable for treating rights as fundamental rather than inalienable.
While the logic of Justice Roberts was tortured in upholding the constitutionality of Obamacare, he did have some good advice, settle the choices with an election, and do not leave it up to the courts.
Updates On HHS Contraceptive Mandate
The Beckett Fund maintains a regularly updated site tracking the status of all the cases involved As of December 20. 2012, the number of lawsuits has grown to 42 and a DC appellate court has sided with the plaintiffs on the issue of being injured by the regulations.
On February 1, 2013, the Department of Health and Human Services issued a new Notice of Proposed Rule Making that expands the definition of “religious employer”.