This column by ACRU Senior Legal Analyst Ken Klukowski was published July 28, 2012 on Breitbart.com.
On August 1, Obamacare's latest outrage goes into effect as the "HHS Mandate" takes effect, and the Alliance Defending Freedom (ADF) just scored the first victory in religious liberty against this authoritarian decree days before its implementation.
The Department of Health and Human Services (HHS) issued a regulation under Obamacare requiring almost all employers to cover abortion, birth control, and sterilization services. There are exemptions for nonprofit "religious employers," but this term's definition in the regulation is so ridiculously narrow that it would include churches and synagogues, by likely exclude a school, clinic, or hospital run by that house of worship.
Several states and religious institutions filed challenges to this mandate, which requires Catholics and adherents of various other faiths--such as some Evangelicals--to violate their religious faiths. Those cases have all been dismissed, because the plaintiffs have been unable to prove as this point that they will fall outside any interpretation of the religious exemption or otherwise be excluded from the scope of this governmental command. These courts haven't ruled against the plaintiffs on the merits; they've instead held that litigation is premature at this point.
ADF designed a case that gets around that issue. The plaintiffs here are members of the Newland family, and the business they own, Hercules Industries, is an air conditioning business. The Newlands are devout Catholics trying to live out the teachings of their faith through their business policies, yet they are a secular, for-profit business, thus outside any interpretation of the religious exemption to the HHS Mandate.
ADF filed a motion for a preliminary injunction, asking the U.S. District Court in Colorado to order the mandate cannot be enforced against the Newlands and Hercules while this litigation is ongoing. Judge John Kane issued that injunction on July 27, finding that the plaintiffs have a "substantial likelihood" of final success on the merits of their lawsuit.
Kane explained that this injunction is to preserve the status quo until the lawsuit can run its course to a final ruling of whether the HHS mandate is invalid as applied to Americans who religiously object to it. The administration argued that granting the injunction would thwart Congress' goal of improving healthcare. But Kane responded that even if true, "These interests are countered, and indeed outweighed, by the public interest in the free exercise of religion."
So Newland satisfied the legal standard of showing that here, "questions going to the [legal] merits [are] so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation."
Judge Kane also found it unnecessary to examine the constitutional claims here because this regulation likely violates the Religious Freedom Restoration Act (RFRA), which makes it illegal for regulations to "substantially burden a person's exercise of religion even if the burden results from" laws that generally apply to everyone regardless of religion. Under RFRA, such burdens are allowed only if it achieves a compelling public interest and if it is the least restrictive means of doing so.
This victory is by no means final, but it's the first of its kind. As ADF's lawyer on this case, Matt Bowman, said today, "Every American, including family business owners, should be free to live and do business according to their faith. Hercules Industries will be able to do just that." He's right, and now we'll see if the courts continue to agree.