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Appellate Court Understands HHS Mandate’s Burden on Religion

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To date, the American Center for Law & Justice (“ACLJ”) has filed three federal lawsuits on behalf of for-profit businesses and their owners against the HHS Mandate and has filed friend-of-the-court briefs in thirteen other legal challenges to the Mandate.

The 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.

The Mandate applies when an employer renews its employee group health plan. If an employer refuses to comply with the Mandate, the employer faces significant fines and penalties.

Recently, we noted that we had filed an appeal in the United States Court of Appeals for the Seventh Circuit, based in Chicago, in the case where we represent 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 company pursuant to their Catholic faith, which the Mandate prevents.

This past October, we filed a motion asking the federal trial court to block enforcement of the Mandate before it applied to our clients on January 1, 2013, when they had to renew their group health plan. The trial court denied our motion on December 14, 2012.

We immediately appealed the trial court’s decision to the Seventh Circuit and filed an emergency motion for an injunction pending appeal, asking the appellate court to stop application of the Mandate before January 1, 2013.

Late on Friday, December 28, 2012, the Seventh Circuit granted our emergency motion.

The Seventh Circuit, unlike some other courts that have denied relief to for-profit businesses, properly understood how the Mandate harms the religious beliefs of employers.

The Seventh Circuit 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 drugs and services the employer deems immoral, whether or not those drugs and services are ever prescribed or used.

Other courts, for example the trial court that denied injunctive relief to Hobby Lobby Stores, have wrongly accepted the government’s argument that the Mandate does not substantially burden an employer’s religious beliefs.

According to the government, the Mandate does not burden an employer’s religious beliefs because there are independent decisions that have to be made by the health care providers and the patients/employees before the drugs and services are ever used.

In other words, the government argues that there is sufficient distance between the employer and the immoral acts to avoid a violation of the employer’s religious exercise rights.

Under the government’s incorrect rationale, however, a governmental mandate, for example, requiring Catholic hospitals to provide ready access to surgical abortions would not substantially burden the religious exercise of those Catholic hospitals because any burden would be negated by the independent decisions of individuals seeking the abortion.

The absurdity of this logic is obvious, as the Seventh Circuit recognized.

Forcing an employer to pay for a health plan that includes what the employer believes are immoral drugs and services is the equivalent of forcing that employer to provide employees with coupons for those things paid for by the employer himself. There is nothing distant about that; the employer’s religious beliefs are violated in either circumstance.

Although we are pleased with this significant victory at the Seventh Circuit for our clients, this case is not over. We have a lot of work to do in order to permanently prevent the Mandate from being applied to the Kortes and their company.

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

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