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:
- Larry Cirignano, president of Faithful Catholic Citizens: “Give up your religion or go bankrupt. This is not a mandate; it is an ultimatum. Buy insurance and kill babies or go bankrupt fighting us. Not all of us can afford lawyers to fight this ‘mandate.'”
- Matt Smith, president of Catholic Advocate: “Aug. 1 will be remembered as the day our most cherished liberty was thrown in a government dumpster and hauled away. A day when family owned small businesses were forced to abandon their religious beliefs to provide products and services for free. And if they don’t, they will be taxed and fined at a time when job creators are struggling with enough costs and bureaucratic red-tape at every level of government just to stay in business. While the courts have provided a reprieve for one family business in Colorado, the government will never be able to repair the broken conscience of thousands of others until this mandate is removed.”
- Brent Bozell, chairman of ForAmerica: “August 1st is a day that will live in infamy for the First Amendment and the fundamental freedoms and rights we as a people have enjoyed since the founding of our nation. The HHS mandate imposed on the American people is the beginning of the end of freedom as America has known it and loved it. August 1st marks the day when many family owned and operated businesses lose their rights to exercise their faith in their daily lives. The government has told them: Either comply with this mandate in violation of your faith and do what we tell you, or you will pay crippling faith fines to the federal government. With the stroke of a pen, the Obama administration has shredded the First Amendment and the Constitution right before our eyes.”
- Grace-Marie Turner, president of the Galen Institute: “The Obama administration’s assault on religious liberty is taking root … Failure to comply with the mandate will result in penalties that could cost business millions of dollars. The administration clearly did not reach a much-vaunted ‘accommodation’ with business owners who strongly oppose the mandate and believe it is a clear violation of their constitutional protection of religious liberty. The HHS mandate forces business owners to choose between following their religious beliefs or obedience to the federal government. The Obama administration clearly believes the government is supreme and that individuals and businesses must bow to its dictates or suffer severe consequences. We know that Obamacare is wrong for America. The HHS anti-conscience mandate is clear evidence of why the law violates the most fundamental principles upon which our country is founded.”
- Gary Marx, executive director of the Faith & Freedom Coalition: “Confidence in the system and hope for religious liberty was mildly restored when a federal district judge issued a temporary injunction blocking Barack Obama’s health-care mandate from compelling a business to provide insurance coverage of sterilization, contraception and abortion-inducing drugs. This is certainly a victory, but the fact that it only applies to one company means the federal government is still going to force millions of Americans to choose between having health insurance or their conscience and faith. With an administration intent on suppressing religious liberty, we can expect a historic turnout of voters of faith showing up in November.”
- Penny Nance, president and CEO of Concerned Women for America: “The only solution that has been provided to the majority of Americans is to stand up and fight for their religious rights by refusing to comply or battling in court. … We must remember the wise words of Thomas Jefferson, ‘All tyranny needs to gain a foothold is for people of good conscience to remain silent.’ To force religious groups to deny their deeply held convictions is not called balance; it is called tyranny.”
- Jeanne Monahan, director of the Family Research Council’s Center for Human Dignity: “Today as a result of this initial implementation of the HHS mandate, the relationship between the separation of church and state is critically changed. Americans can no longer follow their consciences or religious dictates on issues as critical as abortion-inducing drugs. Organizations such as Wheaton College, or businesses such as Weingartz Supply of Ann Arbor, Mich.,will be forced to violate their consciences. On this sad day Americans have no ‘choice’ in this matter.”
- David Stevens, MD and CEO of the Christian Medical Association: “What will stop this administration, with its radical pro-abortion agenda, from further undermining conscience rights and pursuing policies that effectively force out of medicine physicians with life-honoring convictions? Who will keep government panels from effectively denying physicians and patients choice about what are the most effective and appropriate medicines, surgeries and treatments? We call on Congress to turn back this law’s assault on our freedoms and restore American values and constitutional principles in health care.”
- Paul E. Rondeau, executive director of American Life League: “History tragically teaches us that if our government can abolish one constitutional right, then all constitutional rights are put in jeopardy. This path sets a dangerous and foolish precedent that First Amendments rights such as freedom of speech, association, freedom of the press and the rights to assemble and petition the government may be just as easily curtailed in the future. We call on all citizens to tell their elected representatives that this erosion of rights must not stand.”
- Kristin Hawkins, executive director of Students for Life of America: “Today marks the beginning of the end of religious and conscience rights in America. As an employer, I am forced to make a false choice between providing a vital service to my employees and violating my conscience and values. The abortion-pill mandate is an egregious attack upon my rights, as well as the rights of all people of values and faith in America.”