ACLJ Files Opening Brief In Seventh Circuit HHS Mandate Appeal

Today, my ACLJ colleagues and I filed our opening brief with the United States Court of Appeals for the Seventh Circuit in one of our challenges to the HHS Mandate.

The Mandate requires most employers, under pain of penalty, to pay for employee health insurance that covers contraceptives, abortion-inducing drugs, sterilization, and related education and counseling.

The Seventh Circuit will be considering our appeal on behalf of Cyril and Jane Korte and their family-owned construction company, Korte & Luitjohan Contractors, Inc. The Kortes are Catholic. They seek to manage and operate their Illinois company pursuant to their Catholic faith. Their faith prevents them from arranging for and paying for insurance coverage that provides the goods and services required by the Mandate. If they follow their faith and do not include such coverage, the federal government will impose annual fines of approximately $730,000.

This past October, we filed a motion asking the federal trial court to enter a preliminary injunction to prevent enforcement of the Mandate while the case proceeded to final resolution.

The trial court denied our motion on December 14, 2012. We immediately appealed that decision to the Seventh Circuit. We also filed an emergency motion for an injunction pending appeal.

We asked the appellate court to stop application of the Mandate before January 1, 2013, to allow our clients to obtain an employee health benefit plan that excluded coverage for contraceptives, abortion-inducing drugs, sterilization, and related education and counseling.

On December 28, 2012, the Seventh Circuit granted our emergency motion.

The Seventh Circuit understood how the Mandate harms the religious beliefs of employers. The court explained: “The religious‐liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.”

Simply put, the injury to an employer’s religious beliefs occurs from the Mandate forcing the employer, under pain of penalty, to arrange for and pay for insurance that provides goods and services the employer deems immoral, whether or not those goods and services are ever prescribed or used.

With the emergency injunction in place, the Mandate did not apply to our clients when they had to renew their employee health plan on January 1st. Although we obtained an injunction pending the appeal, we still have to convince the Seventh Circuit to overturn the trial court’s decision.

The first step toward achieving that goal was the filing of our opening brief, in which we explain why the district court’s decision should be reversed.

The federal government will be filing its response to our opening brief in early March. We get to file a reply brief later that month. The Seventh Circuit will then schedule an oral argument date.

We will continue to keep you posted about this case and about our other important efforts against the HHS mandate.