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."
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"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.
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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.
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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."
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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."
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:
- 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."