A federal judge in Michigan has become the second in the nation to say he would halt the federal government's enforcement of the Obamacare mandate that employers pay for abortifacients regardless of their religious views.
Writing that "a preliminary injunction would serve the public interest," Judge Robert H. Cleland said in a decision issued late Wednesday that he would issue the order.
"The potential for harm to plaintiffs exists, and with the showing plaintiffs have made thus far of being able to convincingly prove their case at trial, it is properly characterized as irreparable."
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The case was brought against the federal government by the Thomas More Law Center on behalf of Legatus, a coalition of Catholic business owners, Daniel Weingartz and his company, Weingartz Supply.
The judge's decision means the federal government will not be allowed to enforce its abortion mandate against the company until the lawsuit is resolved. The decision does not affect Legatus, the judge ruled, because, as a nonprofit, the rules for that application remain in development.
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Erin Mersino, the lead counsel on the case for the plaintiffs, said: "The federal court has found that our clients have a likelihood of success and would be irreparably harmed by the unconstitutional overreaching of the HHS mandate. This is not only a victory for our clients, but for religious freedom."
In an earlier case in Denver, WND reported when U.S. District Judge John J. Kane of Colorado granted Hercules Co. owners Andy Newland and other family members a similar order preventing enforcement of the mandate against the family-owned company.
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The "mandate" is a set of regulations adopted by Barack Obama's Department of Health and Human Services, run by the emphatically pro-abortion Kathleen Sebelius, that forces employers, regardless of religious faith, to provide insurance coverage for abortion-inducing drugs, sterilization and contraception under threat of financial penalties.
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," Cleland wrote. "The harm in delaying the implementation of a statute that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs. The balance of harms tips strongly in plaintiffs' favor. A preliminary injunction is warranted."
The case was brought over the provisions of the Obamacare law that demand Americans buy products from insurance companies or face government penalties of thousands of dollars. It was filed against Sebelius, Labor Secretary Hilda Solis, Treasury Secretary Tim Geithner and others.
The judge said the injunction would not apply to Legatus since, as a nonprofit, the rules applying to that group of organizations was not yet final.
The judge ordered the government to file a statement describing the status of the rules.
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The case alleges the Obama administration is violating the First Amendment's Free Exercise of Religion and Free Speech clauses as well as the Religious Freedom Restoration Act and the Administrative Procedure Act.
The opinion has been posted online.
The rules adopted specifically demand that employers pay for coverage of the "full range" of procedures allowed by the Food and Drug Administration, such as Plan B abortifacients and Ella abortifacients.
Weingartz' company sells outdoor power equipment and employs about 170 people.
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Cleland specifically rejected arguments from the government that the company is secular and has no right to exercise a religious perspective, regardless of what the owner believes.
"At least one circuit has held that 'a corporation has standing to assert the Free Exercise rights of its owners' when that corporation is closely held and 'merely the instrument through and by which [the plaintiffs] exercise their religious beliefs," he wrote.
"Further, the Supreme Court has famously recognized the First Amendment free-speech protection extends directly to corporations," he said, citing the Citizens United case.
He noted that previous rulings have held a corporation "is an extension of the beliefs of [its owners], and for all purposes, the beliefs of [its owners] are the beliefs and tenets of the [corporation]."
He said the company has an independent First Amendment right to free exercise of religion, a point that Obama's lawyers had argued against.
He also said he remains uncertain whether the government "will be able to prove a compelling interest in promoting the specific interests at issue in this litigation."
In the Weingartz case, Department of Justice attorneys specifically argued the challenge "rests largely on the theory that a self-described secular corporation established to sell outdoor power equipment can claim to exercise religion and thereby avoid the reach of laws designed to regulate commercial activity."
"This cannot be," the Justice attorneys said.
The federal attorneys – Stuart F. Delery, Barbara L. McQaude, Sheila M. Lieber, Michelle Bennett and Ethan P. Davis – said, "It would also cripple the government's ability to solve national problems through laws of general application."
They said the goals of the government – "improving the health of women and children and equalizing the playing field for women and men" – is so important that even if the regulations are a burden on religious rights, the court should affirm them.
"The government may substantially burden the exercise of religion if it '(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest,'" they said.
They argued that whatever the religious beliefs of the owners, the fact that the company is set up as a corporation means the government can order it to do anything the government wants, irrespective of the owner's beliefs.
"This case should begin and end with plaintiffs' admission that Weingartz Supply Company is a secular employer and with the undisputed facts that confirm that admission," they said.
They said the requirement for companies to have their health care plans provide abortifacients has nothing to do with the owner of the company or his religious beliefs.
"By their terms, the regulations apply to group health plans and health insurance issuers. Mr. Weingartz is neither. The regulations do not impose any obligations on individuals."
And they concluded abortificients are critical to health care in today's world.
"Increased access to contraceptive services is a key part of these predicted health outcomes, as a lack of contraceptive use has proven to have negative health consequences for both women and a developing fetus," the federal attorneys explained.
They did not argue that there would be no damage to the company or its owner but said it simply doesn't matter.
"Any potential harm to plaintiffs resulting from their desire not to provide contraceptive coverage is thus outweighed by the significant harm an injunction would cause to the public," they wrote.
Dozens of cases have been filed against the government over the issue, including one by the Alliance Defending Freedom on behalf of Tyndale House Publishers.
In that case, the Obama administration argued the Bible publisher is not religious for the purposes of being a religious employer.
Tyndale House is one of the world's largest privately held Christian publishers of books and Bibles. But Obamacare demands it purchase the abortion services because it is classified as "categorically non-religious."
That's even though it is owned by the nonprofit Tyndale House Foundation, through which profits are funneled to be donated to various charities.
"Bible publishers should be free to do business according to the book that they publish," said Senior Legal Counsel Matt Bowman. "To say that a Bible publisher is not religious is patently absurd. Tyndale House is a prime example of how ridiculous and arbitrary the Obama administration's mandate is. Americans today clearly agree with America's founders: the federal government's bureaucrats are not qualified to decide what faith is, who the faithful are, and where and how that faith may be lived out."
WND recently reported in the Denver case, while Obama says he holds "unwavering" support for religious freedom, attorneys representing a Colorado family said the actions of his Department of Justice reflect exactly the opposite.
The department has filed an appeal to force the Newland family of Denver, which owns Hercules Industries, to violate their beliefs in the operation of their company, in a case also handled by the ADF.
A trial judge ordered that the mandate could not be enforced immediately against the family that owns Hercules.
But administration lawyers have filed a notice of appeal, in a document signed by Michelle Bennett, that seeks to have the arguments moved to the 10th U.S. Circuit Court of Appeals.
"Every American, including family business owners, should be free to live and do business according to their faith," said Bowman. "The Obama administration claims 'unwavering' support for religious freedom, but this appeal demonstrates that the only thing unwavering is the administration's tenacious opposition to that freedom.
"The cost of religious freedom for this family could be millions of dollars per year in fines that would cripple their business and potentially destroy jobs if the administration ultimately has its way," Bowman said. "In filing its appeal today, the administration sent a clear message that it wants to force families to abandon their faith in order to earn a living. That's the opposite of religious freedom."
ADF reports the U.S. Department of Health and Human Services could penalize the family millions of dollars per year if they don't agree to violate their religious faith.
But it was Obama who said his "Christian faith" has guided his presidency, and, "In a changing world my commitment to protecting religious liberty is and always will be unwavering."
ADF attorneys have clients in other cases challenging the mandate, including Indiana's Grace College, California's Biola University, Louisiana College and Pennsylvania's Geneva College and the Seneca Hardwood Co.
Other lawsuits have been filed by Wheaton College in Illinois, Catholic University of America, University of Notre Dame, the Archdiocese of New York and the Catholic University of America.
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 show 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."