The federal courts may finally soon tackle the question of whether religious freedom is threatened by the federal government's mandate that employer-provided health-insurance plans cover contraceptives and abortifacients.

A motion hearing is scheduled for tomorrow, July 25, in U.S. District Court in Colorado, where a Catholic family that owns and operates a heating and air conditioning company is seeking an injunction to halt the controversial mandate of the U.S. Department of Health and Human Services.

The U.S. government argues in court documents that the lawsuit should be dismissed because the Newlands’ family business, Hercules Industries, is a secular entity and thus does not exercise religion in a way that is protected by the First Amendment.

“By definition, a secular employer does not engage in any ‘exercise of religion,’” government lawyers argued in their brief for Newland v. Sebelius, which also presents the HHS mandate as a means to improve the health of women and children, guaranteeing “preventive care” for women so that they are on an equal playing field with men in the workforce.

However, that line of thinking threatens religious freedom by trying to separate the right to worship from the right to order one’s life according to one’s conscience and religious convictions, said Matt Bowman, legal counsel for the Alliance Defending Freedom, a coalition of Christian attorneys representing the Newland family. Alliance Defending Freedom was formerly called the Alliance Defense Fund.

“We think, under the law, the federal government is not allowed to force families to abandon their faith just to earn a living, that religious freedom in the First Amendment, as Congress has protected it, is not just for Sundays and soup kitchens. It’s for you to live your daily life, including in business, according to your faith,” Bowman told the Register.

In Newland v. Sebelius, Alliance Defending Freedom is asking the court to block the HHS mandate and to issue a ruling by Aug. 1. The Newlands’ business does not qualify for an extension granted to some religiously affiliated employers, who will not be required to abide by the mandate until August 2013. The family business also does not have the option to keep its current health-care plan, which does not cover contraception.

As things now stand, Hercules Industries would be legally required by the HHS mandate to start offering all Food and Drug Administration-approved forms of birth control, including sterilization and abortifacients, in November, when its next health-insurance plan year begins.

The federal government is trying to assure that happens by getting the Newlands’ lawsuit thrown out of court by arguing the plaintiffs’ business does not qualify for a religious exemption.

“Having chosen the secular, for-profit path [Hercules] may not impose its owners’ religious beliefs on its employees, many of whom do not share, or even know of, the owners’ beliefs,” the federal government argues in its brief. The government also says the HHS mandate does not violate the plaintiffs’ free speech rights because the regulations compel conduct, not speech.

“The government admits it’s coercing the beliefs of the Newman family, and it’s doing it very soon. This ruling is expected to address religious freedom itself and not technicalities,” Bowman said.

 

Lawsuits Dismissed

Technical grounds constituted the reasons that two other lawsuits challenging the HHS mandate were dismissed last week in federal courts in Nebraska and Washington, D.C.

The Nebraska case — filed by attorneys general from seven states, three Catholic nonprofits and two individuals — was thrown out when Judge Warren Urbom ruled that none of the plaintiffs had legal standing because they had not claimed any real “injury” from the mandate.

In Washington, the court dismissed without prejudice a lawsuit brought forward by the Becket Fund for Religious Liberty on behalf of Belmont Abbey College, a Catholic college in North Carolina. The court said the lawsuit had been filed prematurely, since Belmont Abbey will not be affected by the HHS mandate until August 2013. The court noted that the federal government has also expressed a willingness to find an accommodation for religiously affiliated nonprofits opposed to contraception on religious grounds.

The ruling also allowed Belmont Abbey to re-file its lawsuit if it can later claim that its religious liberty is being compromised when the HHS mandate kicks in next year.

Kyle Duncan, general counsel for the Becket Fund, told the Register that he disagreed with the court’s ruling in the Belmont case.

“Whether the mandate violates our client’s rights is something the court can decide and should decide right now,” said Duncan, who is skeptical that the government will truly offer an accommodation to protect Belmont Abbey’s religious liberty.

“The accommodation the government has promised is just that — a promise. It’s not the law. They’ve just sketched out some ideas. The government can dangle this promise in the future, and, meanwhile, the clock is ticking for our clients,” Duncan said.

In February, following weeks of mounting pressure, President Barack Obama announced a proposed accommodation by requiring that health-insurance companies reach out and offer free contraceptive coverage for employees at religiously affiliated institutions. Obama said the religious employers would not have to pay for or directly provide those services. However, critics, including Duncan, call that an accounting trick.

“It’s not clear how that would be accomplished. It would not alleviate the burden for the employer, as contraceptives would still be accessed through the employer’s health plan,” said Duncan, who added that Belmont Abbey is considering its options, including filing an appeal.

Bowman said he believes that Belmont Abbey would have a good chance of winning an appeal because the HHS mandate is “a real and present danger to religious freedom.”

“I’m hopeful that other judges will protect the religious freedom of institutions,” Bowman said.

Duncan agreed with Bowman in saying that the Newland case in Colorado will touch on the merits of their religious-liberty argument.

“It is likely that religious-freedom arguments will happen in that case because for-profit businesses are not covered by the extension,” Duncan said.

The American Center for Law and Justice, a Christian legal nonprofit representing a Catholic business owner challenging the HHS mandate in St. Louis, recently posted on its blog that the decisions out of Nebraska and Washington are not binding on the other federal courts where legal challenges by religious institutions are still pending.

“The bottom line is that the numerous legal challenges to the HHS mandate are far from over,” the ACLJ wrote.

Currently, there are 22 federal lawsuits pending against the HHS mandate in 11 different federal courts nationwide. The Becket Fund is representing clients in at least four pending lawsuits, including one by EWTN, the parent company of the Register.

“There are many different cases out there in front of different judges that are going forward,” Duncan said. “Judges will come to different conclusions if the lawsuits are premature or if the courts should proceed onto the merits. We think that everybody should wait and see what comes down the road.”

Register correspondent Brian Fraga writes from El Paso, Texas.