This column by ACRU Senior Legal Analyst Ken Klukowski was published on December 27, 2012 on Breitbart.com.
Supreme Court Justice Sonia Sotomayor has denied Hobby Lobby’s emergency application to be exempted from the HHS Mandate on abortion services, but that should not be considered a sign that the HHS Mandate will survive its legal challenges in the end.
The war on religious liberty continues. Despite repeated promises from President Barack Obama and his allies that they would not use Obamacare to force people to violate their religious beliefs regarding abortion, Obama handpicked an abortion-hardliner as secretary of the U.S. Department of Health and Human Services (HHS), Kathleen Sebelius.
Predictably, Sebelius promulgated a regulation last February saying that a plain-vanilla provision in Obamacare requiring employers to cover “preventive services” means they must provide birth control, sterilization, and abortion-related services. To millions of religious Americans–especially millions of faithful Roman Catholics–such things are immoral, violating their religious consciences and potentially ending a human life.
There are over forty lawsuits in federal court across the country challenging the HHS Mandate, both as a violation of religious exercise in the First Amendment and also a violation of the federal Religious Freedom Restoration Act (RFRA), which forbids government actions that impose a substantial burden on religious freedom unless they are the least restrictive means to achieve some compelling public interest.
One high-profile plaintiff in these cases is Hobby Lobby. The Becket Fund for Religious Liberty is representing Hobby Lobby, wholly-owned by a devoutly religious family that objects to abortion. Hobby Lobby’s lawsuit lost in federal court in Oklahoma, and then the U.S. Court of Appeals for the Tenth Circuit in Denver refused to block the mandate while the appeal is ongoing.
Becket’s loss thus far in this case is in contrast with the major victory Becket won last week in another federal appeals court, where (as we rightly predicted) the D.C. Circuit issued an injunction forbidding HHS from enforcing its regulation as currently written against Christian colleges. It’s also in contrast with early court victories in some of the other lawsuits by the Alliance Defending Freedom, among others.
Becket petitioned Justice Sotomayor to set aside the HHS Mandate while this case proceeds, and also for the Supreme Court to grant certiorari and take the case for an ultimate decision now. Sotomayor denied both requests. But this first denial of Supreme Court action does not at all suggest the justices will not eventually strike down the HHS Mandate.
Each of the thirteen federal appeals courts are overseen by one of the nine Supreme Court justices, and the application for an injunction was submitted to Sotomayor because she is the circuit justice over the Tenth Circuit.
But denying such a request for an injunction does not at all suggest the justices will ultimately rule in favor of the Obama administration. Preliminary injunctions–that is, orders issued before the matter has gone through the judicial process–are rare. Courts are supposed to be careful and deliberate.
It’s not uncommon for the Supreme Court to issue a stay against a court of appeals’ final decision if that ruling is likely to come to the Supreme Court. In those instances, the justices are merely preserving status quo until they decide the case, since sometimes you can’t put the toothpaste back in the tube once it’s out.
This is different. Here, the appellate court hasn’t even made a definitive ruling on the merits. The Tenth Circuit was ruling on a motion for a preliminary injunction while the lawyers were preparing legal briefs and offering oral arguments in that lower court on why the HHS Mandate is illegal. Justice Sotomayor was being asked to issue a ruling in the absence of even a full-fledged appellate opinion, which gives her very little to work with.
She still had the power to do it, but the bar is set higher under those circumstances. The further a case is from final judgment, the more reluctant a Supreme Court justice is to issue an injunction. A justice will often only issue such an order if it is almost beyond question that the applicant is entitled to relief. In the words of late Chief Justice William Rehnquist, such an order is only issued if “the legal rights at issue are indisputably clear.” The HHS Mandate litigation poses a contested question of federal law, and while the courts should eventually hold that the HHS Mandate clearly violates RFRA, that result is not beyond dispute before a court hears arguments on the issue.
It is interesting that Justice Sotomayor handled this application the way she did. Sotomayor is a liberal jurist, appointed by Obama, and although abortion has not been squarely before the Supreme Court since her appointment, she is widely expected to be a staunch supporter of abortion rights. A circuit justice has the option of ruling upon such an application individually, or referring it to the full Court for all nine justices to vote. It would have been interesting to see how Chief Justice John Roberts or Justice Anthony Kennedy would vote on this.
But now the issue continues in the lower courts. Given Hobby Lobby’s size, it could face fines in excess of one million dollars after the HHS Mandate kicks in against it on Jan. 1. The extent of these fines could have been cited as a justification for granting an injunction now, but instead Hobby Lobby or one of these other cases will have to take that risk until the process fully plays out, and the Supreme Court then takes up the HHS Mandate, quite possibly in late 2013.