This column by ACRU Senior Legal Analyst Ken Klukowski was published February 3, 2013 on Breitbart.com.
Obamacare’s HHS Mandate lost yet again in a federal appeals court last Thursday, and then lost in a second case on Friday. These cases continue on the long road to the Supreme Court, and President Obama’s new “accommodation” of religious employers will do nothing to stop them.
There are now at least 12 HHS Mandate cases in the federal courts of appeals, all challenging Kathleen Sebelius’ deeply-unpopular Obamacare regulation that all employers with 50 or more employees must offer healthcare plans that cover birth control, sterilization, and abortion-related services.
Grote Industries is an Indiana-based company that makes lighting systems for cars. It’s owned and managed by a family of Roman Catholics who object to birth control. On Jan. 31, the U.S. Court of Appeals for the Seventh Circuit issued an injunction pending appeal in Grote Industries v. Sebelius by a 2-1 vote, holding among other things that there is enough of a chance that the HHS Mandate violates federal religious liberty protections that the Chicago-based appeals court is ordering that this company does not need to comply with the regulation.
The lead lawyer on the case, Matt Bowman from the Alliance Defending Freedom, said:
Americans have the God-given freedom to live and do business according to their faith. Forcing employers to surrender their faith in order to earn a living is unprecedented, unnecessary, and unconstitutional. Honoring God is important every day, in all areas of life, including in our work. Freedom is not the government’s to give and take away when it pleases.
Then on Feb. 1, the U.S. Court of Appeals for the Eight Circuit also issued an injunction pending appeal in Annex Medical, Inc. v. Sebelius. Annex Medical has less than 50 employees, so it’s not required by the Obamacare law to provide healthcare. Nonetheless, the owner offers healthcare to all his employees.
But the owner of this Minnesota-based company, Stuart Lind, is again a deeply-religious man who objects to the HHS Mandate. So the federal appeals court in St. Louis likewise held that it’s likely the HHS Mandate violates his rights under the Religious Freedom Restoration Act (and possibly the Constitution as well).
So a dozen such cases are now before different appellate courts, in different stages of appeal. (This doesn’t count dozens more cases that are before the trial-level federal district courts.) Decisions on whether to issue what are called preliminary injunctions in these cases–which will be the next step in the legal process–are likely to start coming down in late spring, meaning that sometime this fall the Supreme Court could vote to take one or more of these cases, and decide the legality of Sebelius’ abortion-related mandate in 2014 once and for all.
The Obama administration’s new supposed accommodation for religious employers doesn’t change this equation. Legal experts are still trying to determine if it isn’t just a series of accounting gimmicks. But even if it allowed religious employers to completely opt out of the HHS Mandate, it nonetheless only applies to nonprofit employers. The companies that secured early wins in their cases last week are for-profit, secular businesses. So their cases will continue, and within a year one of the many cases currently on appeal should be before our nation’s highest court.