Federal Appeals Court Soundly Rules Against Abortion-Pill Mandate

My American Center for Law & Justice (“ACLJ”) colleagues and I are pleased to inform you of an important victory against the Obama Administration’s HHS Mandate, which requires many employers—despite their religious objections—to arrange and pay for employee health insurance that covers contraceptives, abortion-inducing drugs, and sterilization. If an employer refuses to comply with the Mandate, the employer faces significant fines and penalties.

This past Friday, November 8th, the United States Seventh Circuit Court of Appeals, based in Chicago, ruled in favor of the ACLJ’s clients in Korte v. Sebelius, a case I had the privilege to argue before that appellate court this past May.

The Seventh Circuit’s decision in the Korte case is significant. It is the first appellate court decision in which a court has determined that both the owners and their company have religious liberty rights that are burdened by the Mandate.

In its 2-to-1 decision, the Seventh Circuit stated as follows: “We hold that the plaintiffs—the business owners and their companies—may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religious-exercise rights.”

The Seventh Circuit also determined that the federal government did not show any significant interest that overrides the religious liberty rights of our clients, and, even if it had such an interest, the federal government did not show, as it is required to do, that it cannot achieve its interest in ways that are less damaging to religious-exercise rights.

As a result of the ruling, the Seventh Circuit is sending the case back to the trial court with instructions to enter a preliminary injunction in favor of our clients that will bar the enforcement of the HHS Mandate against them pending the full resolution of their lawsuit. Ultimately, we are seeking that the trial court permanently enjoin the enforcement and application of the Mandate with regard to our clients.

The ACLJ has been challenging the Mandate for more than two years.

Our efforts have encompassed submitting formal comments to HHS when the Mandate was being contemplated, filing seven federal lawsuits against the Mandate, including the first lawsuit filed on behalf of a for-profit business and its owner (e.g., here and here), filing more than fifteen “friend-of-the-court” briefs in support of those who are also challenging the Mandate (e.g., here and here), and filing a certiorari petition with the United States Supreme Court earlier this month for the Court to consider a central issue involved in the various Mandate cases.

To date, we have been fortunate to have obtained injunctions against the application and enforcement of the Mandate for all of our clients.

In the Seventh Circuit case, our clients are Cyril and Jane Korte, a husband and wife, and their family-owned construction company, Korte & Luitjohan Contractors, Inc., that has been serving the Central and Southern Illinois area for more than fifty years. The Kortes seek to manage and operate their company pursuant to their Catholic faith.

Their Catholic faith prevents them from providing the products and services required by the Mandate, except in limited circumstances.

If they follow their faith and do not abide by the Mandate, they will be forced to pay the federal government annual fines of more than $700,000, which will destroy the company.

In October 2012, we filed a lawsuit on behalf of the Kortes and their company, and asked the federal trial court to enter a preliminary injunction to prevent enforcement of the Mandate by January 1, 2013, when their employee health plan had to be renewed.

The trial court denied our motion two months later, and we immediately appealed that decision to the Seventh Circuit. We also filed an emergency motion with that appellate court for injunctive relief to stop application of the Mandate before January 1, 2013.

In late December, the Seventh Circuit granted the emergency motion, which permitted the Kortes to comply with their faith while the court considered our appeal of the trial court’s denial of the preliminary injunction motion. In that regard, we filed our opening brief on appeal this past January and our reply brief this past March.

The oral argument before the Seventh Circuit was an additional opportunity for us to present our case to the appellate court and, in particular, to answer any questions of the three judges who decided the case.

We will continue to keep you informed about this and the other important cases in which we are involved against the HHS Mandate.