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HHS Mandate Case Goes to Next Level

By Edward White1355945817000

As you may know, we are involved in many lawsuits challenging the legality of the HHS Mandate.

These lawsuits include our recent victory in the United States Court of Appeals for the Eighth Circuit. There, the court blocked the application of the Mandate to our client, Frank O’Brien, and his business while the case is pending on appeal.

The HHS Mandate requires most employers, especially those with fifty or more full-time employees, to pay for employee health insurance that covers contraceptives, abortion-inducing drugs, sterilization, and related education and counseling.

If an employer refuses to comply with the Mandate, the employer faces significant fines and penalties.

For example, if an employer of 100 employees provides health insurance that does not comply with the Mandate, the employer would be subjected to a $10,000 fine per day for each day of non-compliance, totaling $3,650,000 in fines in a regular year.

In one of our HHS mandate cases, we represent Cyril and Jane Korte and their family-owned construction company, Korte & Luitjohan Contractors, Inc., (“K & L”), which has been in existence for more than fifty years in Illinois.

The Kortes are Catholic. They seek to manage and operate K & L in a way that reflects their Catholic faith.

Based on their religious beliefs, they have established ethical guidelines for K & L.

K & L’s ethical guidelines state that the company will not pay for or otherwise provide employee health coverage for contraceptives, sterilization, abortion, abortion-inducing drugs, or related education and counseling except in limited circumstances.

This past October, we filed a motion with the federal trial court asking that court to block enforcement of the Mandate against the company until the case is fully resolved.

In particular, we requested that the court stop the Mandate’s application before the date our clients must comply with the Mandate: January 1, 2013.

Last Friday, December 14, the court denied our motion. The court determined that “the connection between the government regulation and the burden upon the Kortes’ religious beliefs is too distant to constitute a substantial burden.”.

The following Monday, December 17, we filed our notice of appeal with the trial court from the denial of our motion.

Yesterday, December 18, the case was transferred from the trial court to a federal court of appeals, the United States Court of Appeals for the Seventh Circuit, based in Chicago.

Soon after the Seventh Circuit received the case, we filed an emergency motion for an injunction pending appeal.

In our motion, we are asking the Seventh Circuit to do as the Eighth Circuit did in our O’Brien case: stop application of the Mandate against our clients before the January 1, 2013, deadline.

We argue that our clients’ religious exercise is substantially burdened because the Mandate forces them to either pay for and provide goods and services that they believe are immoral or pay significant fines.

In short, the Mandate requires our clients to pay for a health plan that makes contraception and sterilization freely available to employees—precisely what our clients’ religious beliefs and ethical guidelines forbid.

The religious burden directly imposed on our clients by the Mandate is not alleviated by an employee’s decision whether to make use of these drugs or services.

Indeed, forcing our clients to pay for a health plan that includes abortion-inducing contraception is tantamount to forcing them to provide their employees with coupons for free abortion-inducing contraception, or other forms of abortion, paid for by our clients themselves.

There is nothing “too distant” about that burden, as the federal trial court incorrectly suggested.

We are hopeful that the Seventh Circuit will grant our emergency motion and spare our clients from the consequences of the Mandate come January 1, 2013.

We will continue to keep you posted.

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