Ruling Strikes Body Blow to Obamacare
BY Hugh Hewitt
August 12-25, 2012 Issue | Posted 8/7/12 at 12:33 PM
Friday afternoon, aka the “Friday News Dump,” is the time when folks in the United States release news they don’t want anyone to notice.
This is a time-honored tradition inside the Beltway, when agencies under siege and beleaguered politicians announce their mea culpas or publish their email trails.
It is rare for courts to play politics with the release of their decisions and opinions, and there is no reason to think that U.S. District Court Judge John Kane of Colorado intended to bury the result of Newland v. Sebelius July 27.
However, because of the timing, many people missed it.
Certainly those in the mainstream media missed it — or simply wanted to ignore it.
For Kane’s 18-page opinion is a body blow to the Obamacare regulations requiring Catholic employers, hospitals and schools to violate their consciences by providing health-insurance coverage to their employees that pays for sterilization, birth control and “morning after” pills.
The plaintiffs in Newland are the owners of Hercules Industries Inc., a maker and distributor of heating, ventilation and air conditioning (HVAC) products and equipment. They are siblings, and they are Catholic to the core.
And while they have long provided generous health benefits to their employees, the Newland family did not want to pay for abortifacients or any other procedure or drug condemned by the Church as an instrument of evil.
With the help of the superb lawyers from the Alliance Defending Freedom (formerly the Alliance Defense Fund), the Newlands sought relief from President Barack Obama’s mandate, citing both the protections of the 1993 Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment of the U.S. Constitution.
Judge Kane granted their request for relief, finding that, despite the high hurdle required by a motion for a preliminary injunction, the Newlands had cleared that hurdle.
The judge didn’t have to rule on the constitutional issue. His analysis of the federal statute left him with an obvious ruling: “The balance of the equities tips strongly in favor of injunctive relief in this case.”
“Freedom of conscience has won an important victory,” Mitt Romney declared in a statement after the judge issued his ruling. “Today’s injunction preventing the federal government from forcing one family business from having to choose between keeping its doors open and violating its faith is a step in the right direction.”
“But it is only a step, not the end of the struggle,” Romney continued. “We must ensure that the same freedom to live according to one’s faith is available to all Americans.”
“If I am elected president, I will never cease fighting for freedom of conscience as it is guaranteed under the First Amendment,” Romney concluded, and, with that commitment, the campaign of 2012 added another issue of enormous importance to the nation’s Catholics to the table.
Obama is defending the Health and Human Services regulations. Romney is committed to their repeal. And private-sector employers now have a map on how to take action to prevent the government from making them choose between their faith and compliance with the law.
In the aftermath of the Supreme Court’s decision on Obamacare, many Catholics were disappointed, even distraught. Even on the day of that decision, however, many were pointing to a silver lining: The federal courts would have to deal with the religious-freedom claims triggered by Obamacare now that the law in its entirety wasn’t struck down.
Courts would have to weigh the merits of the claims of Catholics and other religious institutions. (Wheaton and Geneva Colleges and Colorado Christian University have joined the lawsuits challenging the HHS regulations.) Opinions would issue from the circuit courts, and, hopefully, the Supreme Court then would confront the issue of how far the state could intrude upon rights of conscience. Those decisions would, many of us believed, uphold this country’s tradition of a robust protection for religious faith.
The first of those decisions is in, and it is all that we could have hoped for. That Judge Kane issued a permanent injunction even before a trial on the merits is very significant because it means that the issue wasn’t even close.
The HHS regulations, despite Obama’s strong defense of them, are clearly illegal in the opinion of this judge, and his opinion is so tightly reasoned that other courts are sure to give it great weight in considering their own challenges.
It is true that media missed the story and that the “Friday News Dump” obscured this most-important turn of events. But tell your friends and family: Help is on the way.
What is vitally necessary now is for other private employers to step forward and present their facts to courts.
The Newlands have shown the way and are to be thanked for their courage. Lawyers from the Alliance Defending Freedom or other groups like the Becket Fund (which is representing the Register’s parent company, EWTN) will evaluate any case that any private employer may want to press to free themselves from Obamacare’s imposition on their genuine religious beliefs.
If you are a company president or owner who doesn’t want to pay for the morning-after pill in the health insurance you are in the process of buying or will soon have to buy, contact one of these legal-defense organizations and ask for help.
If you aren’t in a position like the Newlands, nevertheless, you have a role to play — and that is to ask your elected officials what they are doing about these new rules in the aftermath of this case.
Call their offices and ask for a response. Demand clarity.
Enforce accountability via your vote and your contribution.
This is a time for choosing, and all voters have a right to know if their representatives and senators are going to choose religious freedom or loyalty to the president and his ill-conceived attack on the First Amendment on behalf of the abortion-rights absolutists.
Hugh Hewitt is an American radio talk-show host. He teaches law at Chapman University School of Law in Orange, California.
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