HHS mandate loses first test in federal court

posted at 11:31 am on July 28, 2012 by Ed Morrissey

Don’t get too excited by this court decision, an injunction against the HHS contraception mandate that goes into effect on Wednesday.  We’ve seen other court rulings on ObamaCare go one way, only to be disappointed in the final test at the Supreme Court.  Still, I’d rather win the first round than lose it (via The Anchoress):

The Catholic family that owns a Colorado-based company won a court victory in their battle to stop the Obama administration from requiring them to provide insurance coverage for abortion-inducing drugs, sterilization and contraception, a mandate they say violates their religious beliefs and First Amendment rights.

Hercules Industries, a Denver-based heating ventilation and air conditioning manufacturer that employs nearly 300 full-time workers, got an injunction in federal court which stops enforcement of the controversial ObamaCare mandate. The company’s lawyers said they needed the injunction immediately because if the mandate is enforced, it must begin immediately making changes to its health plan, which renews on Nov. 1.

The case is similar to ones brought by Catholic-based colleges that have refused to provide employee insurance with such coverage, except this time, it is a secular corporation.

In his order, Colorado District Judge John Kane said that the government’s arguments “are countered, and indeed outweighed, by the public interest in the free exercise of religion.”

The injunction only applies to Hercules Industries, not the mandate as a whole, and it’s only temporary, as William Jacobson points out at Legal Insurrection.  However, the usual paradigms for issuing temporary injunctions are that the judge believes the plaintiffs have a substantial chance of winning the case, and that the regulation or action being halted does significant damage to the plaintiff.  That hints at a favorable ruling at the district court level for Hercules, which is definitely good news, as the Alliance Defending Freedom, which represents the owners of Hercules, proclaimed in its statement:

Alliance Defending Freedom attorneys obtained the first-ever order against the mandate on behalf of Hercules Industries and the Catholic family that owns it. The administration opposed the order, arguing, contrary to the U.S. Constitution, that people of faith forfeit their religious liberty once they engage in business. The mandate could subject the Newlands to millions of dollars in fines per year if they don’t abide by its requirements.

“Every American, including family business owners, should be free to live and do business according to their faith. For the time being, Hercules Industries will be able to do just that,” said Legal Counsel Matt Bowman. “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. Americans don’t want politicians and bureaucrats deciding what faith is, who the faithful are, and where and how that faith may be lived out.”

In his order, Senior Judge John L. Kane of the U.S. District Court for the District of Colorado said that the government’s arguments “are countered, and indeed outweighed, by the public interest in the free exercise of religion. As the Tenth Circuit has noted, ‘there is a strong public interest in the free exercise of religion even where that interest may conflict with [another statutory scheme]….’ Accordingly, the public interest favors entry of an injunction in this case.” Kane explained that the government’s “harm pales in comparison to the possible infringement upon Plaintiffs’ constitutional and statutory rights.”

According to the brief Alliance Defending Freedom filed along with the motion requesting the injunction, “the mandate disregards religious conscience rights that are enshrined in federal statutory and constitutional law.” It also violates the First Amendment “due to its massive inapplicability and its discrimination among religions,” the brief explains.

The Newlands have to win the case and have it upheld at the appellate level before it has force as a precedent.  That seems, though, like a slam-dunk, especially after the very recent Supreme Court decision in Hosanna-Tabor Church v. EEOC that unanimously found a ministerial exception to equal-opportunity laws in religious schools — the very kind of religious organizations that got excluded from the religious exemption by the HHS contraception mandate.  The fractious justices united in limiting the application of regulations dealing with federal mandates in what might be considered second-tier religious organizations, and the HHS mandate appears to occupy a very similar relationship as the EEOC issues in Hosana-Tabor.  Plus, frankly, the HHS mandate seems flat-out offensive on its face to the First Amendment, which seems to be Judge Kane’s take, at least initially.

This is definitely a good start for those who have demanded respect for freedom of religious practice and expression.  But, just as a reminder …


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…just wait for Justice Roberts!

KOOLAID2 on July 28, 2012 at 11:35 AM

…religion will become a tax!

KOOLAID2 on July 28, 2012 at 11:37 AM

…Ginsberg will become a Bat!

KOOLAID2 on July 28, 2012 at 11:38 AM

…hello!…it’s not a gun thread!…hello?

KOOLAID2 on July 28, 2012 at 11:39 AM

Yes!!

Khun Joe on July 28, 2012 at 11:39 AM

…it’s the ECONOMY stupid…!!!

KOOLAID2 on July 28, 2012 at 11:40 AM

Colorado District Judge John Kane

Jimmy Carter nominee.

Judge Kane was the presiding judge of a hot dog salesman who was convicted of swindling investors. On November 7, 2009, the judge sentenced Arnold Zaler to fifteen years in federal prison for his role in the case. The judge denied a request from Zaler’s attorney to give a lesser sentence due to known mental health conditions on the basis of his past criminal history.

Del Dolemonte on July 28, 2012 at 11:41 AM

Hurray…… If the SCOTUS won’t strike the whole thing in one fell swoop, maybe they will dismantle it one small piece at a time.

Oh, and…

Happy Birthday Thad.

SWalker on July 28, 2012 at 11:42 AM

That seems, though, like a slam-dunk, especially after the very recent Supreme Court decision in Hosanna-Tabor Church v. EEOC that unanimously found a ministerial exception to equal-opportunity laws in religious schools — the very kind of religious organizations that got excluded from the religious exemption by the HHS contraception mandate.

A slam dunk for the ministerial employees at Hercules Industries. Otherwise Hosanna-Tabor wouldn’t seem to offer much of a precedent for those employees who haven’t taken religious vows.

OptionsTrader on July 28, 2012 at 11:42 AM

Unless we get Obummer out of the White House, there will be no escape from socialized medicine and single-payer.

Didn’t you watch the Olympic opening ceremonies? Socialized medicine is glorious, and if you disagree, you hate children.

Romney 2012.

Philly on July 28, 2012 at 11:43 AM

While I can’t speak for all attorneys, in my experience, the temporary injunction hearing is pretty much the whole case – as noted, the court has to find there’s a substantial likelihood of success on the merits (one factor of four) before it will grant a temporary injunction. I’ve not seen many judges change their mind after deciding “Yes there is” or “no there isn’t” a substantial likelihood of success on the merits.

But this is just the opening skirmish. Other judges will have this argument presented in different jurisdictions and, eventually, there will be appeals.

The best remedy is still repeal. We get the government we deserve. We should not and, based on recent experience, cannot count on the courts to save us from ourselves.

BD57 on July 28, 2012 at 11:43 AM

Everyone knows contraception is just a form of taxation. Of course it is Constitutional!

Valiant on July 28, 2012 at 11:43 AM

is just a form of taxation. Of course it is Constitutional!

Valiant on July 28, 2012 at 11:43 AM

and of course taxation makes EVERYTHING constitutional.
/

CW on July 28, 2012 at 11:45 AM

Several of the groups that have filed suit saw a glimmer of hope for their case in Justice Ruth Bader Ginsburg’s opinion in the Supreme Court’s individual mandate case.

“Other provisions of the Constitution also check congressional overreaching,” Ginsburg wrote. “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion or infringed on a liberty interest protected by the Due Process Clause.”

The phrasing caught the eye of many opponents of the law.

http://www.politico.com/news/stories/0712/78104.html

Resist We Much on July 28, 2012 at 11:50 AM

Repeal and Replace ™

Tim_CA on July 28, 2012 at 11:51 AM

and of course taxation makes EVERYTHING constitutional.
/

And the greedy didn’t-build-it-on-their-own one-percenters can’t expect respect from the Democrats until they’re paying their “fair share.”

As the Founding Fathers said, “No representation without a lot of taxation.”

Drained Brain on July 28, 2012 at 11:52 AM

The best remedy is still repeal. We get the government we deserve. We should not and, based on recent experience, cannot count on the courts to save us from ourselves.

BD57 on July 28, 2012 at 11:43 AM

That is true form a strict policy perspective, of course. But I think it would be salutary for Americans to watch many different courts slap this Administration upside the head for its blatant violation of the First Amendment. It’s another data point for the general public to begin understanding the real liberal agenda.

rockmom on July 28, 2012 at 11:54 AM

OT: Boss Emeritus Speaks

Key West Reader on July 28, 2012 at 12:00 PM

Great news Ed!

Several of the groups that have filed suit saw a glimmer of hope for their case in Justice Ruth Bader Ginsburg’s opinion in the Supreme Court’s individual mandate case.

“Other provisions of the Constitution also check congressional overreaching,” Ginsburg wrote. “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion or infringed on a liberty interest protected by the Due Process Clause.”

The phrasing caught the eye of many opponents of the law.

http://www.politico.com/news/stories/0712/78104.html

Resist We Much on July 28, 2012 at 11:50 AM

That’s because “Congress shall make no law…” includes even tax laws. Even the libs on the Court have no compunction in striking laws Congress has passed which violate the Bill of Rights.

txmomof6 on July 28, 2012 at 12:00 PM

The administration opposed the order, arguing, contrary to the U.S. Constitution, that people of faith forfeit their religious liberty once they engage in business.

Gird your loins Chick-Fil-A.

Flora Duh on July 28, 2012 at 12:02 PM

On the bhocare issue. Here is an interesting article about how the states can crater bhocare? If this is true, and I have no idea why it wouldn’t be, this IS the way to go to put a stake in the heart of bhocare?

http://www.breitbart.com/Big-Government/2012/07/27/How-States-Can-Reject-and-Replace-Obamacare?utm_source=dlvr.it&utm_medium=twitter
L

letget on July 28, 2012 at 12:04 PM

No no… See, it’s a tax… And the taxing authority of the federal government is absolute. So not only must they pay the tax, the government can also tax the church for their incoming tithes plus tax all distributions.

That doesn’t hinder their exercise of religion at all… That’s just the price of living in a civilized society and if those taxes are punitive well that’s just too bad isn’t it?

/s just in case my dripping sardonic sarcasm isn’t that dripping but that IS our current legal state.

FUBO and FUR

Skywise on July 28, 2012 at 12:11 PM

Flora Duh on July 28, 2012 at 12:02 PM

Ramirez has a cartoon on the issue you brought up. Great as usual!

http://news.investors.com/editorialcartoons/cartoon.aspx?id=62018
L

letget on July 28, 2012 at 12:11 PM

Ever since the Obamacare ruling I have little faith that the courts will decide in favor of freedom over bureaucratic fiat. Ed, you predicted that this mandate would be withdrawn the day it was proposed, and almost every time it has made news since then.

Any practical Politician would have already done so, but this guy is an entirely new species. He is a dictator coming out of his cocoon of benevolence. It’s getting scary to watch.

Mord on July 28, 2012 at 12:13 PM

Didn’t you watch the Olympic opening ceremonies? Socialized medicine is glorious, and if you disagree, you hate children.

Romney 2012.

Philly on July 28, 2012 at 11:43 AM

I stopped watching after I saw that bit about the NHS. It was disgusting! Danny Boyle should be ashamed of himself for politicizing the Olympics like that. As well as Matt Loser and Merideath Viera for putting their two cents worth(that’s all that they are worth) in about it. They won’t be, of course, but they are libs after all.

Sterling Holobyte on July 28, 2012 at 12:21 PM

If Roberts hadn’t decided to play Gumby with the Constitution with his strenuous linguistic and legal contortions, this whole conversation would be moot.

Thanks for nothing, Justice Roberts. You may have convinced yourself that you rose above politics for some noble reason, but all you did is further the diminishing of our foremost founding document.

hillbillyjim on July 28, 2012 at 12:35 PM

I think this is a big deal. This is a case involving religiously motivated private citizens. On paper, they’re one step farther away from DHS’s definition of a religious organization than the religious hospitals and schools that are suing the feds.

These cases are all religious liberty cases, and the Obama administration will lose these big time. Too bad the ultimate resolution is one, two, or three years from now.

Even if the religious organizations are not in a position to seek an injunction in their cases, unlike the Obamacare cases, I can’t see them losing at any level (federal district courts, federal courts of appeal, and SCOTUS).

BuckeyeSam on July 28, 2012 at 12:44 PM

Annoying popup book offer makes this story unreadable on the iPhone, because it can’t be closed, and it won’t go away after a time. Allah must be to blame…

Few Things Considered on July 28, 2012 at 12:53 PM

obamao is the anti-Christ and sebelius is merely one of his minions.

ultracon on July 28, 2012 at 12:56 PM

I don’t think we have to worry about Roberts this time. There’s no confusing talk about whether something is a tax or not.

GarandFan on July 28, 2012 at 1:22 PM

Yep, every time something regarding ObamaTax / ObamaCare / Socialized Medicine comes up, it just rekindles my anger toward Benedict Roberts. This should have been dead and buried a month ago, instead the distinguished jurist managed to betray the Constitution and the citizens of this country.

When history is written, one of the key contributors to the breakup of the United States of America into several entities, one of which will remain a Constitutional Republic, will be John Roberts’s abrogation of his duty to uphold and defend the Constitution by granting the federal government unlimited power through its taxing authority.

AZfederalist on July 28, 2012 at 1:24 PM

What I find disturbing is that we have to hang this on religious freedom. Government shouldn’t be mandating what has to go into insurance — and birth control certainly isn’t the kind of thing that anyone would want to take out a policy against “needing”.

Count to 10 on July 28, 2012 at 1:26 PM

Yep, every time something regarding ObamaTax / ObamaCare / Socialized Medicine comes up, it just rekindles my anger toward Benedict Roberts. This should have been dead and buried a month ago, instead the distinguished jurist managed to betray the Constitution and the citizens of this country.

When history is written, one of the key contributors to the breakup of the United States of America into several entities, one of which will remain a Constitutional Republic, will be John Roberts’s abrogation of his duty to uphold and defend the Constitution by granting the federal government unlimited power through its taxing authority.

AZfederalist on July 28, 2012 at 1:24 PM

Why are you blaming this on Roberts? There were four other judges that voted for worse. Frankly, he stayed within the power that he was supposed to exert. Striking down the law on the basis of whether or not it was a tax would not have been upholding the Constitution.
This law needs to be repealed, not struck down. Don’t whine that you didn’t get a deus ex machina, vote people into office that will change it properly.

Count to 10 on July 28, 2012 at 1:32 PM

Few Things Considered on July 28, 2012 at 12:53 PM

HA is abominable on a smartphone.

slickwillie2001 on July 28, 2012 at 1:42 PM

“Hercules Rises!… First Plaintiff Beats Obama HHS-Abortion Mandate in Court”

And the bad news – this will likely be appealed all the way to SCOTUS, where traitor, fool, OBOZO tool and socialist media puppet Roberts will have another chance to shaft the Constitution and all Americans.

TeaPartyNation on July 28, 2012 at 2:05 PM

Rumor has it Roberts considers the HHS mandate not a mandate but an optional support program. He will find it legal under the reasoning it does not violate any constitutional grounds.

The logic behind Roberts rumored position is religious organizations can always opt out by shutting down the organizations which are found non compliant and just practice their faith behinds the four walls of a church in private where no one can see or be bothered by them.

In the end it was purported that Roberts believes if the public wants any true justice on this issue they need to vote and get congress to manage it because it is not the courts responsibility to resolve conflicts between the public and issues of constitutionality.

Skwor on July 28, 2012 at 2:29 PM

This is good news since another judge threw out another case…Catholics re-group and keep fighting.

workingclass artist on July 28, 2012 at 3:32 PM

The logic behind Roberts rumored position is religious organizations can always opt out by shutting down the organizations which are found non compliant and just practice their faith behinds the four walls of a church in private where no one can see or be bothered by them.
Skwor on July 28, 2012 at 2:29 PM

Roberts is wrong and he knows it. He’s decided to act against constitutional principle and legislate relativism.

It is not up to him to decide Catholic Dogma,Tradition or Doctrine.

For Catholics charity (including hospitals) and schooling are inseparable to the faith and this has been the case since Apostolic times and grew with the first monasteries established by Saint Athanasius in Europe (344 AD)

workingclass artist on July 28, 2012 at 3:45 PM

Why are you blaming this on Roberts?

Count to 10

Because he IS to blame. It’s not complicated.

xblade on July 28, 2012 at 4:07 PM

Repeal and [Do Not] Replace ™

Tim_CA on July 28, 2012 at 11:51 AM

FIFY

GWB on July 28, 2012 at 5:22 PM

That seems, though, like a slam-dunk…

“It’s a tax,” John Roberts explained.

Hawkins1701 on July 28, 2012 at 5:32 PM

Doesn’t the new Health Care Law exempt Islamic people from being a part of this because of “violating” some of their beliefs? Yet, the same is not afforded to Catholics or other Religious beliefs? I would call that a double standard. But, then again, I still can’t rationalize the “liberal” thinking person. But, then again, do liberals really “think”???

mtdavs on July 29, 2012 at 7:34 AM