If the supporters of Obamacare thought its legal troubles were
over after the recent Supreme Court ruling, they learned otherwise
last week. On Friday, Senior Judge John Kane of the U.S. District
Court for the District of Colorado issued an order forbidding
the government from taking action against a company called Hercules
Industries for refusing to provide contraceptive coverage to its
employees. The injunction is specific to Hercules and only applies
while its lawsuit, Newland v. Sebelius, is litigated.
Still, it is significant because it is the first such order against
the contraception mandate and it protects a family-run enterprise
whose owners merely seek to operate their company in a way that
reflects their religious beliefs.
Included among Obamacare’s Byzantine tangle of provisions is a
set of benefit requirements whose ostensible purpose is to assure
that we all receive “proper” levels of medical care. Once these
directives had made their way through the bowels of the HHS
bureaucracy, a regulatory edict emerged commanding all health care
plans to provide what the Beltway regulators refer to as
“preventive services.” These include contraceptives,
abortion-inducing drugs, and sterilization. This mandate motivated
43 high-profile Catholic organizations to file a coordinated series
of lawsuits against the Obama administration last May, and it also
provided the impetus for the lawsuit filed by the owners of
Hercules Industries.
The plaintiffs in Newland v. Sebelius argue, as do the
Catholic institutions, that this “anti-conscience mandate” violates
their First Amendment right to religious freedom. Incredibly, the
DOJ’s lawyers argue that
the Newlands have no claim to this fundamental right because they
operate a for-profit business: “Plaintiffs’ free exercise claim
fails at the outset because… for-profit, secular employers
generally, and Hercules Industries in particular, do not engage in
any exercise of religion protected by the First Amendment.” In
other words, this basic constitutional protection is lost to
William Newland, Paul Newland, James Newland and Christine
Ketterhagen because they run a business founded by their family in
1962.
In the DOJ’s losing argument against the injunction the
government lawyers claimed, “It is also contrary to the public
interest to deny the employees of Hercules Industries the benefits
of the preventive services coverage regulations.” Judge Kane, who
was appointed by Jimmy Carter on the recommendation of two Democrat
Senators, responded to the Justice Department’s public interest
claim as follows: “These interests are countered, and indeed
outweighed, by the public interest in the free exercise of
religion… the threatened harm to Plaintiffs, impingement of their
right to freely exercise their religious beliefs, and the
concomitant public interest in that right strongly favor the entry
of injunctive relief.”
The exercise of religion will, of course, be far from “free” for
the members of the Newland family if the government eventually
prevails in this lawsuit. The Obama administration has essentially
given these folks a choice between abandoning their religious
principles and shutting down a business that employs more than 260
people. The attorney representing the plaintiffs, Matthew S. Bowman
of the Alliance Defending Freedom, points
out that “The cost of freedom for this family could be millions
of dollars per year in fines that will cripple their business if
the Obama administration ultimately has its way. This lawsuit seeks
to ensure that Washington bureaucrats cannot force families to
abandon their faith just to earn a living.”
Newland v. Sebelius, like the lawsuits filed in May by
the Catholic organizations, is part of a coordinated national
effort against the Obamacare anti-conscience mandate. With the aid
of the Becket Fund for Religious Liberty and other private advocacy
groups, 24 lawsuits
have been filed around the country. The participation of the Becket
Fund in this effort is significant. It played an important role in
the unanimous
rebuke delivered to the Obama administration by the Supreme
Court in Hosanna-Tabor v. EEOC, a case that may have
implications for the ultimate legal fate of the anti-conscience
mandate. Unfortunately, as we saw on June 28, the courts constitute
a thin reed to lean on where basic liberty is concerned.
The immediate service Newland v. Sebelius and Judge
Kane’s injunction can perform is to remind us what four more years
of Barack Obama will mean for the country. Emboldened by their
recent victory in the Supreme Court, the President and his minions
are moving forward with all speed to “transform” the U.S. into a
place that our parents would not recognize as the same nation they
bequeathed to us after World War II. If I were able to tell my
father, a veteran of that war and a lifelong Democrat, that the
government may now command one to buy products from private
corporations and proposes to delimit our religious liberties
according to the arbitrary whims of Beltway bureaucrats, he would
advise me to go sleep it off.
The original complaint in Newland v. Sebelius contains
the following statement: “The Newlands sincerely believe that the
Catholic faith does not allow them to violate Catholic religious
and moral teachings in their decisions operating Hercules
Industries.” Such convictions have no place in the country Barack
Obama envisions for us. In that country, people like the Newlands
— and you — will be required to put the needs of the state before
trivial concerns about individual and religious liberty. It’s time
to put a stop to this.
