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.
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