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Court: Feds promised NOT to enforce 'mandate'

Religious organizations and business owners who object to Obamacare’s mandate to pay for abortifacients have been handed a huge victory, with a court concluding the government already has promised it never will enforce those provisions against them.

“The government … represented to the court that it would never enforce [the mandate] in its current form against the appellants or those similarly situated as regards contraceptive services,” said an order released by U.S. Court of Appeals for the District of Columbia.

The three-judge panel said the government said there will be “a different rule for entities like the appellants … and we take that as a binding commitment.”

“The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013.”

The judges continued: “We take the government at its word and will hold it to it.”

The ruling is the latest in the dispute that developed when Barack Obama decided through the Obamacare rulemaking process to demand that employers – no matter their faith or beliefs – pay for abortifacients and other morally questionable procedures for employees.

Dozens of lawsuits have been filed on behalf of Christian business owners, religious colleges and others. Several judges, including those at one appellate bench, have ordered the government not to enforce the mandate for now.

The decision from the federal appeals court in Washington comes in a case brought by Wheaton College of Illinois and Belmont Abbey College.

The lower courts had dismissed the cases as premature. Now the appeals judges have reinstated the cases and have ordered the Obama administration to report back every 60 days, starting in February, until its promise for a new rule that protects the colleges’ religious freedoms is in effect.

“The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom,” said Kyle Duncan, an attorney working on the case.

Duncan is attached to the Becket Fund for Religious Liberty.

“The court is not going to let the government slide by on non-binding promises to fix the problem down the road,” Duncan said.

The judges said that based “expressly upon the understanding that the government will not deviate from its considered representations to this court, we conclude that the cases are not fit for review at this time because ‘if we do not decide [the merits of appellants’ challenge to the current rule] now, we may never need to.'”

“The colleges argue that the government’s promise not to enforce the mandate still leaves them exposed to liability from ERISA claims brought by employees and other beneficiaries,” they continued.

“Although the parties disagree over the likelihood of that happening, we see nothing about the bringing of those claims that alters our conclusion that the petitioners’ lawsuits should be held in abeyance pending the new rule that the government has promised will be issued soon.”

The judges said the government must file “regular status reports … every 60 days from the date of this order.”

Duncan called the decision a win not just for Belmont Abbey and Wheaton, but for all religious non-profits challenging the mandate.

“The government has now been forced to promise that it will never enforce the current mandate against religious employers like Wheaton and Belmont Abbey and a federal appellate court will hold the government to its word,” he said.

Another previous decision by the 8th U.S. Circuit Court of Appeals set the tone for the developing arguments.

That court agreed with three U.S. district judges and blocked the enforcement of the Obamacare mandate that would have forced a Missouri company to pay for health insurance, including abortifacients in violation of the religious beliefs of the owners.

According to the American Center for Law and Justice, the order put on hold the White House-promoted requirement in the case involving Frank R. O’Brien and O’Brien Industrial Holdings, a St. Louis, Mo., company that runs a number of businesses that explore, mine and process refractory and ceramic raw materials.

“By granting our motion, the appeals court blocks the implementation of the HHS mandate and clears the way for our lawsuit to continue – a significant victory for our client,” said Francis Manion, senior counsel of the ACLJ. “The order sends a message that the religious beliefs of employers must be respected by the government. We have argued from the beginning that employers like Frank O’Brien must be able to operate their business in a manner consistent with their moral values, not the values of the government. We look forward to this case moving forward and securing the constitutional rights of our client.”

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In October, a federal district court judge granted Obama’s motion to dismiss the lawsuit. The ACLJ immediately filed an appeal, and the higher court today granted the motion for an injunction.

The lawsuit, launched in March 2012, marked the first legal challenge to the HHS mandate from a private business owner and his company, the ACLJ said.

O’Brien, a Catholic, told the ACLJ his religious beliefs provide the framework for the operation of his businesses, which employ 87 people. The company website states the mission “is to make our labor a pleasing offering to the Lord while enriching our families and society.”

Meanwhile, district judges in Colorado, Michigan and Chicago have issued similar rulings to protect companies in those locations while they fight what they describe as a blatant violation of the owners’ religious rights.

Earlier in the O’Brien case, the government determined that the mandate is a “burden” on religious rights.

“Indeed, defendant [Health and Human Services Secretary Kathleen] Sebelius herself has publicly acknowledged that the mandate raises religious concerns,” said a court filing from the ACLJ.

“In a press release issued on Jan. 20, 2012, announcing the finalization of the mandate and the temporary safe harbor period for nonprofit entities that object to contraceptive services, defendant Sebelius opined that the temporary reprieve ‘strikes the appropriate balance between respecting religious freedom and increasing access to important preventative services.’

“Subsequently, in a press release issued on July 31, 2012, Sebelius stated that ‘the Obama administration will continue to work with all employers to give them the flexibility and resources they need to implement the health care law in a way that protects women’s health while making common-sense accommodations for values like religious liberty.'”

The legal brief, filed in U.S. district court for the Eastern District of Missouri, continued:stories “The defendants cannot make a straight-faced argument in this litigation that the mandate does not impose a substantial burden on the exercise of religious beliefs. Indeed, the defendants have postponed for a year the application of regulations that purportedly advance a compelling governmental interest solely because of the burden the defendants themselves recognize that these regulation impose on the exercise of religion.

“Clearly, nothing but a burden of a ‘substantial’ nature could justify such a postponement,” the brief said.

Dozens of Christian organizations around the country, and a number of companies, have launched legal actions over the mandate, which also now may be heading back to the U.S. Supreme Court for review after the justices ordered an appellate court to consider religious rights claims by Liberty University.

Leaders of a number of religious-advocacy groups are warning of the Obamacare contraception mandate consequences for business owners of faith: