Attorneys for the Obama administration have explained to a federal appeals court that ordering company owners to violate their faith by paying for abortion pills does not amount to a significant "burden" at all.
The opinion comes from Stuart R. Delery, John F. Walsh, Beth C. Brinkmann, Mark B. Stern and Alisa B. Klein, all of whom 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.
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, which also has been raised in dozens of other court cases.
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At issue is the Obamacare promotion of abortion services, such as the morning-after pill. Obamacare demands that employers provide that coverage to workers, regardless of the religious beliefs of company owners.
While business owners argue the government cannot simply 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.
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"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 where the owners have established and run their company based on their own 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.
The federal attorneys explained that the Obamacare mandate does not require the Newlands to do anything, but rather requires their corporation to act.
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"They do not have to use or buy contraceptives for themselves or anyone else," the attorneys said.
But their corporation does, they explain.
Officials with the Alliance Defending Freedom said the brief in support of Obamacare holds dangerous precedents.
Said Senior Legal Counsel Matt Bowman, "Every American, including family business owners, should be free to live and do business according to their faith. 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. In appealing the district court's order that halted the mandate against Hercules, 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."
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The mandate actually has flopped in the courts, with dozens of case pending.
The ADF noted recently that the Obama administration has suffered 10 losses and only four victories in defending the Patient Protection and Affordable Care Act's abortion-pill mandate in court, a losing record the alliance of attorneys advocating religious freedom celebrates.
Other cases have been brought by Tyndale House Publishers of Carol Stream, Ill., the world's largest privately held Christian publisher of books, Bibles and digital media. Technically owned by the non-profit Tyndale House Foundation, the publisher furthermore directs 96.5 percent of its profits to religious non-profit causes worldwide and specifically objects to covering abortifacient drugs in its employee health plans.
Bowman had argued in court that regardless of Tyndale House's for-profit status, its religious freedoms are protected by the U.S. Constitution.
The U.S. District Court for the District of Columbia ultimately agreed, issuing a preliminary injunction order against the mandate, accompanied by an opinion from U.S. District Judge Reggie B. Walton.
"The beliefs of Tyndale and its owners are indistinguishable," Walton opined. "Christian principles, prayer and activities are pervasive at Tyndale, and the company's ownership structure is designed to ensure that it never strays from its faith-oriented mission. The Court has no reason to doubt, moreover, that Tyndale's religious objection to providing insurance coverage for certain contraceptives reflects the beliefs of Tyndale's owners. Nor is there any dispute that Tyndale's primary owner, the Foundation, can 'exercise religion' in its own right, given that it is a non-profit religious organization."
The ADF similarly pointed to the lawsuit filed on behalf of a non-profit college, Louisiana College v. Sebelius, in which a federal judge refused to grant the Obama administration's motion to dismiss.
The ADF notes its attorneys and allied attorneys are also litigating several other lawsuits against the mandate: one in Minnesota on behalf of Annex Medical, Inc.; another one in Indiana on behalf of Indiana's Grace College and Seminary and California's Biola University; and one in Pennsylvania on behalf of Geneva College and The Seneca Hardwood Lumber Company and its owners, the Hepler family.
A few weeks ago, a federal judge in Michigan said 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 he would issue the order in a case involving Daniel Weingartz and his company, Weingartz Supply.
"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," he wrote.
"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."
It was Obama himself 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."
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 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."