This column by ACRU Senior Legal Analyst Ken Klukowski was published July 19, 2013 on Breitbart.com.
Home-retailer Hobby Lobby–owned by the Green family, who are devout Christians–just dealt the Obamacare HHS mandate a devastating one-two punch. It’s likely the Obama administration will have no choice but to now petition the U.S. Supreme Court–where President Barack Obama’s signature legislation is in danger of suffering a humiliating defeat.
The HHS mandate is not in the Affordable Care Act (ACA, or Obamacare); it’s a regulation implementing a plain-vanilla section of the ACA requiring “preventive services”–and requires all employers to cover abortion-related services.
Many of the lawsuits brought against the HHS mandate represent religious entities like my alma mater, the University of Notre Dame, but others have been brought by for-profit businesses wholly-owned by Evangelicals, Catholics, or others whose religious faith rejects abortion as a sin and the taking of an innocent human life.
In addition to arguing the HHS Mandate is unconstitutional, these cases argue it also violates an important federal law, the Religious Freedom Restoration Act (RFRA). The most prominent of these lawsuits is the one brought by Hobby Lobby, represented by the Becket Fund. We’ve covered this story extensively.
Now there have been two major developments. First, the full U.S. Court of Appeals for the Tenth Circuit issued a major decision on June 27. In its opinion, the circuit court held (1) that RFRA applies not only to human beings, but to a corporate entity like Hobby Lobby that is wholly owned and operated by humans who share a religious belief; (2) that this HHS Mandate is a substantial burden on orthodox Christian belief; and (3) that it is not authorized as a measure that is narrowly tailored to achieve a compelling public interest.
So the Tenth Circuit sent the case back down to the U.S. District Court in Oklahoma, ordering that court to determine whether the other conditions are met for the district court to issue a preliminary injunction, immediately freeing Hobby Lobby from the HHS Mandate even while the case is still ongoing.
On Friday, the district court issued a temporary restraining order (TRO) granting a special injunction until the district court has time to fully rule in the preliminary injunction. TROs are only issued in extraordinary circumstances, so getting one here is a very good sign that Hobby Lobby will shortly receive its preliminary injunction.
This is a black eye for the Obama administration and could lead additional federal courts to similarly block the HHS Mandate. (As we’ve written, some already have.) The Justice Department likely has no choice but to petition the U.S. Supreme Court to take this case at this time, rather than waiting until the case goes all the way to final judgment in the district court and on appeal, which could easily take at least another full year.
The problem for the administration is that there are very likely five votes on the Supreme Court to hold that the HHS Mandate violates RFRA, in which case the mandate will be struck down nationwide.