New Supreme Court decision on Obamacare

The U.S. Supreme Court for now will ignore employers who argue that penalties and fines of up to tens of millions of dollars a year for failing to provide government-mandated insurance to employees are unfair and punitive.

Even if such a burden drives a business to its grave.

The argument was raised in a lawsuit brought by Liberty University over the Obamacare employer mandate. The president's health-care law requires that employers provide insurance coverage specified by the government or face daily fines of up to $15,000 for each employee.

The Supreme Court has refused to hear the case, however, although it announced last week that it would hear two cases against the demand that employers pay for abortifacients, regardless of their religious beliefs.

Mat Staver, founder and chairman of Liberty Counsel, which argued the case on behalf of the Christian university, said the cost to the university will be in the multiple millions.

"Liberty University cannot, as a matter of religious conviction, provide any coverage, direct or indirect, for abortion-inducing drugs or IUDs. This refusal will result in millions of dollars in fines annually. The act coerces Liberty to violate its religious convictions under penalty of enormous fines," he explained.

He said the fact the justices refused to hear the argument means it will come up again later.

"The high court has decided to take up the HHS contraception and abortion drug mandate, but it is not ready yet to tackle the entire employer mandate. That challenge will wait for another day," Staver said.

"The Liberty University case would make strong arguments that the employer mandate could not be upheld as a tax because the penalties are exorbitantly high and punitive."

He said the simple facts might have embarrassed the justices, who last summer ruled the law is constitutional by defining the individual mandate as a tax.

"Deciding the case would have highlighted the absurdity of the Supreme Court's convoluted decision upholding the individual mandate as a tax. Apparently the court was not willing right now to venture back into that morass," said Staver.

"We will wait on the court's ruling next year to decide whether to file a new challenge. It is possible the high court could side-step the HHS abortion mandate issue by deciding that for-profit corporations do not have free exercise of religion rights. I hope the court will decide the issue and strike down this most egregious trampling of the free exercise of religion."

The court's refusal came without comment.

Liberty Counsel said, however, the refusal does not establish an opinion on the merits.

"The court could take up a similar challenge if a federal court of appeals strikes down the entire employer mandate, although no such challenge is currently pending," the organization said.

The case was filed on the same day Obama signed the law, which was supported by only Democrats, March 23, 2010.

The case challenged the punitive level of the "taxes" and the discrimination against religious believers.

As with the original Obamacare decision last summer, the Obama administration, which wanted the high court to ignore the case, got its way for now.

"Obamacare is a train wreck. It is hard to see how Obamacare will ultimately survive. Whether it be the judiciary or the legislative process, this law will almost certainly be overturned because it is unworkable on so many levels," Staver said earlier.

The case challenged the entire employer mandate, the forced funding of abortion drugs and devices under the law and as implemented by the federal Department of Health and Human Services, and the forced funding of abortion by individuals under the individual mandate.

Last week, the court accepted the Hobby Lobby and Conestoga cases, both of which are for-profit corporations challenging only the HHS contraception and abortifacient provision.

Liberty Counsel's case was pending before the Supreme Court when the high court ruled on Obamacare last summer in a case brought by the National Federation of Independent Businesses.

Liberty University's case returned to the high court because its issues haven't been addressed yet.

It argues Obamacare violates the Federal Religious Freedom Restoration Act and the First Amendment Free Exercise of Religion Clause. It further asserts that the individual mandate forcing individuals to fund abortion violates the Federal Religious Freedom Restoration Act and the First Amendment Free Exercise of Religion Clause.

"Under the employer mandate, employers are compelled to purchase an unwanted government-defined insurance product at a government-defined price," the petition says. "If they fail to do so, then they face fines that can be as high as $15,000 per employer per day and penalties of $2,000 per employee per year, even if they provide health insurance which does not include abortion-inducing drugs or devices."

There have been dozens of lawsuits against the government over the abortifacient mandate and multiple decisions by federal judges that the government cannot enforce the provisions until the full legal argument is played out. Several courts have concluded that the demand violates religious rights.

Liberty Counsel also has argued that because Obamacare was classified as a tax, it violates the Origination Clause of the Constitution, which requires all tax laws to originate in the House.

Obamacare originated as House Resolution 3590, the Service Members Home Ownership Act. But after passing the House, Senate President Harry Reid simply removed its contents and title, replacing it with a new title and more than 2,000 pages of legislation.

"H.R. 3590 was not originally a bill for raising revenue," Staver said. "This is the first time that the gut-and-amend practice has been used by the Senate to impose new taxes. Our Founding Fathers wrote the Origination Clause because they wanted to keep the power to tax as close to the people as possible. Even after the 17th Amendment passed, allowing for the direct election of senators, the Origination Clause was preserved to keep the 'power of the purse' closer to the people, through their elected representatives.

"Obamacare cannot originate in the Senate and is therefore invalid."