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Obamacare mandate faulted for breaking rules

The Washington bureaucrats who require employers to fund abortifacients even if it violates their faith apparently weren’t even able to follows their own rules.

That’s according to the latest legal challenge to the Obamacare mandate for abortifacient coverage. The complaint was filed today by the American Center for Law and Justice on behalf an Ohio family who run two companies processing and hauling fresh produce.

In a number of similar cases, the ACLJ has obtained injunctions halting enforcement of the requirement.

The complaint filed by the ACLJ said that besides the violation of constitutional religious and speech protections, the rules violate standard procedures in Washington.

“The Affordable Care Act expressly delegates to the Health Resources and Services Administration … the authority to establish ‘preventive care’ guidelines that a group health plan and health insurance issuer must abide by,” says the lawsuit.

“Given this express delegation, defendants were obliged to engage in formal notice and comment rulemaking as prescribed by law before defendants issued the guidelines,” the complaint states. “Proposed regulations were required to be published in the Federal Register and interested persons were required to be given a chance to take part in the rulemaking through the submission of written data, views, or arguments.”

The Obama administration, however, “promulgated the ‘preventive care’ guidelines without engaging in the formal notice and comment rulemaking as prescribed by law.”

The complaint says the defendants “delegated the responsibilities for issuing ‘preventive care’ guidelines to a non-governmental entity, the Institute of Medicine, which did not permit or provide for broad public comment.”

That violation is on top of the clear violations by Obamacare of the Religious Freedom Restoration Act, the First Amendment’s Free Exercise Clause and the Free Speech Clause, the complaint says.

It contends the government is not allowed under the Constitution to force the business owners to buy health insurance for employees that includes coverage for contraception, sterilization and abortion-inducing drugs.

The ACLJ represents Francis A. Gilardi Jr. and Philip M. Gilardi, two brothers who own and control two companies that are involved in the processing, packaging and transportation of fresh produce. The companies are Freshway Foods, a nearly 25-year-old family-owned fresh produce processor and packer, which serves 23 states and has 340 full-time employees. Also represented is Freshway Logistics – a family owned for-hire carrier of mainly refrigerated products serving 23 states for the last 10 years with approximately 55 full-time employees. Both companies are located in Sidney, Ohio, in west-central Ohio, about 40 miles north of Dayton.

The owners are Catholics who say the HHS mandate requiring coverage for contraception, sterilization and abortion-inducing drugs violates their religious beliefs.

“Our clients believe that having to pay for contraceptives, abortion-inducing drugs, and sterilization will cause them to violate their religious beliefs and moral values,” said Edward White, Senior Counsel of the ACLJ. “They have specifically excluded such things from their company’s health insurance plan for the past ten years. The HHS mandate, however, will require them to pay for such drugs and services on April 1st. They have filed this lawsuit seeking an injunction against the mandate so they can continue to run their business in accordance with their religious beliefs and moral values.”

The lawsuit contends the HHS mandate forces the owners to “violate their religious beliefs and moral values” or face crippling fines and penalties. For the two companies combined, the fines and penalties would total nearly $40,000 a day, amounting to $14.4 million annually, which the owners contend will be “ruinous” to their businesses.

The companies face an April 1, 2013, renewal date for their health insurance coverage. The lawsuit requests the court declare the mandate unconstitutional and enter an injunction preventing the mandate’s application to the plaintiffs.

The action is the fourth direct challenge in federal court by the ACLJ to the HHS mandate. The ACLJ has successfully obtained injunctions in the three other direct challenges, barring enforcement of the mandate until the legal challenges are resolved. In addition to the direct challenges, the ACLJ has filed 13 friend-of-the-court briefs backing other legal challenges to the HHS mandate.

In another case recently, the Obama administration argued in a federal court filing that ordering company owners to violate their faith by paying for abortion pills does not amount to a significant “burden” at all.

The opinion came from Stuart R. Delery, John F. Walsh, Beth C. Brinkmann, Mark Stern and Alisa B. Klein, who are attorneys listed on the arguments submitted to the 10th U.S. Circuit Court of Appeals in a case brought by the Newland family and their company, Hercules Industries, against Health and Human Services Secretary Kathleen Sebelius, the pro-abortion former governor of Kansas.

The issues are the same in the cases. A district judge ordered that the new abortifacient mandate in Obamacare, which requires employers to pay for abortifacients for employees, not be applied against Hercules pending the resolution of the dispute.

While business owners argue the government cannot order them to violate their faith, the government says it can.

“The contraceptive-coverage requirement does not impose a substantial burden on any exercise of religious by Hercules Industries or the Newlands,” the government attorneys told the appeals court.

“It is common ground that a religious organization can engage in the exercise of religion, and other federal statutes grant religious organizations the prerogative to discriminate on the basis of religion in the terms and conditions of employment. But Hercules Industries is not a religious organization. It is a for-profit employer that manufactures HVAC equipment.

“Thus, Hercules Industries’ plan must afford the company’s employees and their family members the employee benefits required by law,” the attorneys said.

But what about companies in which the owners have established and run their company based on their biblical beliefs?

Too bad, the federal attorneys said.

“The personal religious beliefs of the corporation’s officers and controlling shareholders, the Newlands, cannot provide a basis for the Hercules Industries plan,” they wrote.

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