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The Fourth U.S. Circuit Court of Appeals must examine the claim that mandated coverage of abortion-inducing drugs violates religious freedom, but ruling offers no assurance that justices will take up the case.
BY JOAN FRAWLEY DESMOND
WASHINGTON — Five months after the U.S. Supreme Court’s landmark decision upheld the individual mandate of the Affordable Care Act, known as Obamacare, the high court directed the Fourth U.S. Circuit Court of Appeals to consider a case that challenges two key provisions of the federal health law, including the contraception mandate.
The Supreme Court’s Nov. 26 ruling offered a reprieve to Lynchburg, Va.-based Liberty University, which argued that Congress lacked the power to require employers to provide health insurance and that the Health and Human Services' mandate requiring co-pay-free coverage of abortion-inducing drugs violated the free exercise of religion for employers and individuals.
Mat Staver, the founder and chairman of Liberty Counsel, a public interest group that filed the lawsuit on behalf of Liberty University, said he “wasn’t surprised” by the high court’s ruling.
“What they did today was the right decision. They should have done that in June,” said Staver, who predicted that Liberty University v. Geithner could reach the high court by next fall.
In June 2012, after the Supreme Court ruled that Obamacare’s individual health-insurance mandate was constitutional as a tax, it turned down an appeal by Liberty University.
The university then petitioned the Supreme Court to reconsider, asserting that its landmark decision on the new health bill did not address two claims in Liberty's original lawsuit, and all nine justices agreed to remand the case to the Fourth Circuit.
“Our argument goes like this: The employer mandate lacks constitutional authority, but even if the court upholds the employer mandate, it still violates the free exercise of religion,” said Staver.
Liberty University, a Christian institution with Baptist roots, argues that the Health and Human Services’ mandate, which requires co-pay-free abortion-inducing drugs, violates both the constitutionally protected free exercise of religion and the Religious Freedom Restoration Act (RFRA).
“This is not a situation where you can practice your religious belief and merely be inconvenienced. This is a situation where you cannot abide by your religious conviction and abide by Obamacare at the same time — they are incompatible,” said Staver.
Mercy Sister Mary Ann Walsh, the spokeswoman for the U.S. Conference of Catholic Bishops, welcomed the high court’s ruling.
“The decision by the Supreme Court to direct the Fourth Circuit to hear Liberty University’s appeal from the dismissal of its lawsuit is the right one,” said Sister Mary Ann.
“The courts must consider how this impacts freedom of religion and whether it violates the Religious Freedom Restoration Act.”
In the wake of Monday’s ruling, however, several constitutional experts cautioned that the high court’s ruling offered no assurance that the justices would ultimately agree to hear the case, whatever the appeals court’s decision.
“I think this is a mere procedural twist in the road,” Stanford University law professor Michael McConnell told the Register, adding that it was “doubtful” that the high court would agree to hear the case.
Ed Whelan, a constitutional scholar who blogs at National Review’s Bench Memos, offered a more neutral response that described the ruling as a “routine housekeeping order that signals nothing on the merits of the claims.”
In a Nov. 26 post marking the latest development in the closely watched First Amendment challenges, Whelan acknowledged that the ruling could “lead to a great result down the road.” But he also noted that the justices did not offer any hints on how they would likely decide the case.
The U.S. Justice Department did not issue a statement following Monday’s ruling, but in a brief on the case filed last month, Solicitor General Donald Verrilli asserted that the university’s two lines of attack against Obamacare “lack merit” — though he made no objection to sending the case back to the appeals court.
Liberty Counsel’s Staver expects that the Fourth Circuit will issue a briefing schedule soon, with a decision by spring 2013.
“Whoever is the loser will have the right to petition, and they’ll have an answer back by fall 2013,” he said. “Now that the court has made the decision, it makes our case the nearest to the Supreme Court.”
For now, religious-freedom advocates like Staver are heartened by the court’s ruling. It shows, they argue, that the justices are keeping an eye on the growing number of First Amendment challenges to the contraception mandate.
Liberty University’s lawsuit incorporated similar First Amendment claims outlined in the 40-plus lawsuits filed by religious institutions and for-profit businesses, while also challenging the constitutionality of the employer mandate.
“Liberty University is the largest Christian university in the world. A core belief is that God is the creator of human life, and we cannot take human life,” said Staver, who also serves at the dean of Liberty University’s School of Law.
He said that the fight to overturn the HHS mandate had brought Catholics and evangelicals together and that he often recommended the U.S. Conference of Catholic Bishops’ 2012 statement on religious liberty, “Our First, Most Cherished Liberty,” as an essential document for all Christians in the nation.
Mark Rienzi, a law professor at The Catholic University of America and general counsel for the Becket Fund for Religious Liberty, suggested that it was too soon to predict which lawsuit addressing the contraception mandate was most likely to reach the high court.
He noted the urgency of legal challenges filed by for-profit companies like Hobby Lobby, which could face crippling fines by January 2013 if they do not comply with the mandate. The Becket Fund, which represents Hobby Lobby, has requested an emergency injunction in the 10th U.S. Circuit Court of Appeals in Denver for the company.
Joan Frawley Desmond is the Register’s senior editor.