Bible publisher wins third injunction against HHS contraception mandate

posted at 2:01 pm on November 18, 2012 by Ed Morrissey

Opponents of the HHS contraception mandate got good news late on Friday — another plaintiff won a preliminary injunction against its enforcement on Friday in federal court.  The Obama administration had attempted to argue that Tyndale House Publishers didn’t meet its standards to claim a religious exemption, but according to LifeNews’ report, that argument didn’t impress a federal judge — even though Tyndale has no explicit connection to a church:

In its opinion accompanying a preliminary injunction order in Tyndale House Publishers v. Sebelius, the court wrote that “the beliefs of Tyndale and its owners are indistinguishable…. Christian principles, prayer, and activities are pervasive at Tyndale, and the company’s ownership structure is designed to ensure that it never strays from its faith-oriented mission.

The opinion continued: “The Court has no reason to doubt, moreover, that Tyndale’s religious objection to providing insurance coverage for certain contraceptives reflects the beliefs of Tyndale’s owners. Nor is there any dispute that Tyndale’s primary owner, the Foundation, can ‘exercise religion’ in its own right, given that it is a non-profit religious organization; indeed, the case law is replete with examples of such organizations asserting cognizable free exercise and RFRA [Religious Freedom Restoration Act] challenges.”

Tyndale is subject to the mandate because Obama administration rules say for-profit corporations are categorically non-religious, even though Tyndale House is strictly a publisher of Bibles and other Christian materials and is primarily owned by the non-profit Tyndale House Foundation. The foundation provides grants to help meet the physical and spiritual needs of people around the world.

On July 27, Alliance Defending Freedom attorneys obtained the first-ever court order against the Obama administration’s mandate on behalf of Colorado’s Hercules Industries and the Catholic family that owns it.

Interestingly, none of the three injunctions imposed by federal courts involve organizations specifically related to churches, such as Catholic hospitals or Lutheran schools.  These cases all involve organizations without specific affiliations that have argued that the mandate infringes on the personal religious expression of the owners, not of a religious organization.  This strongly suggests that the courts will take an even dimmer view of a federal agency forcing Catholic, Lutheran, evangelical, or other faith-based organizations to provide or facilitate access to products and services that expressly violate their own doctrines.

Politically speaking, this will be an embarrassing conclusion to the mandate for the Obama administration if these injunctions turn out to be the norm.  Two other lawsuits against the mandate have been dismissed, but only because HHS told the court that the language of the mandate may change significantly in the near future as the regulations or ObamaCare get written.  If the federal courts continue to block enforcement of the contraception mandate on the basis of personal religious expression, the Obama administration might end up having to explain why its best and brightest minds either couldn’t comprehend the First Amendment, or thought they could succeed in an end-run that would effectively neuter it without the courts noticing.  That would be the second major rebuke to this administration on religious liberty grounds, after its 9-0 Supreme Court defeat that reinstated the ministerial exception to hiring laws at church-based organizations.

In the meantime, these injunctions mean that employees of these organizations are free to buy their own contraception, just as they buy their own food, clothes, cell phones, and over-the-counter medication, and that businesses that wish to provide no-cost birth control are free to do so as well.  That sounds a lot like liberty to me, and for the moment at least, federal courts agree.

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Until Obama gets a few libs on the scotus
to challenge the 1st admendment.

redguy on November 18, 2012 at 2:03 PM

A glimmer of hope.

disa on November 18, 2012 at 2:04 PM

Poor flukie

cmsinaz on November 18, 2012 at 2:11 PM

If it’s overturned may it end up in the SC…alas…there’s so much hope in Roberts.

Schadenfreude on November 18, 2012 at 2:12 PM

BREAKING……..Real religion threat to Man-Made religious beliefs of State Government.

John Roberts to rule Christian thought is incompatible with Constitution in 5….4…..3…..

PappyD61 on November 18, 2012 at 2:14 PM

OCare is genius. Depending on who you are you can opt out of sections of this entitlement train wreck or even the entire thing.

It’s like living in a banana repuglic (not the store, and no that’s not a racist comment either).

CorporatePiggy on November 18, 2012 at 2:15 PM

Maybe if the publisher printed up a few corans on the side, they might get more sympathy from little Bammie and his proggie cabal.

slickwillie2001 on November 18, 2012 at 2:17 PM

Slightly OT, but SCOTUS is supposed to decide on Liberty University’s cert petition, which is a First Amendment challenge to Obamacare, this Tuesday. (SCOTUS only decided the taxing power and commerce power challenges, which do not foreclose other constitutional challenges.)

Don’t know how long it will take for the order granting or denying cert to get out with the holiday on Thursday.

IIRC, Amish and Muslims are exempt from Obamacare. And the Court has 50-year old precedent, US v. Ballard, in which it said it would not decide what was a valid religious belief.

Wethal on November 18, 2012 at 2:18 PM

This is an argument the right will lose. Chiefly because, like with gay marriage, they chose the wrong defense.In gay marriage the argument should have been “Is it marriage?” which obviously it is not.But instead we allowed the left to make it about the value of same sex unions.

Now, instead of asking “Why should anybody be paying for someone elses contraception?” we are trying to carve out one small exemption.
Churches will win this small battle but the war over contraception has already been conceded.

When is the right going to stop allowing the left to turn every battle into a religious one?

Rocks on November 18, 2012 at 2:19 PM

John Roberts to rule Christian thought is incompatible with Constitution in 5….4…..3…..

PappyD61 on November 18, 2012 at 2:14 PM

Hosanna-Tabor was unanimous. It involved a Lutheran high school firing a teacher, who then filed a discrimination complaint with the EEOC.

I doubt he’d flip, if only because I could see one or more of the liberals realizing the long-term consequences of government intrusion into religion.

Wethal on November 18, 2012 at 2:25 PM

Good news.

gophergirl on November 18, 2012 at 2:25 PM

I do look forward to the Obama administration trying to argue that a Bible publisher is engaged in a secular activity.

Wethal on November 18, 2012 at 2:27 PM

These cases all involve organizations without specific affiliations that have argued that the mandate infringes on the personal religious expression of the owners, not of a religious organization.

That is significant.

When is the right going to stop allowing the left to turn every battle into a religious one?

Rocks on November 18, 2012 at 2:19 PM

Well, mainly because the Tyndale House suit and the others are about the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

To be asked to pay for abortifacients prohibits the free exercise of our Christian faith. I skimmed at the judge’s opinion and The Religious Freedom Restoration Act of 1993 was used.

1993 United States federal law aimed at preventing laws that substantially burden a person’s free exercise of their religion.

INC on November 18, 2012 at 2:29 PM

Ed has the links to the opinion as well as the preliminary injunction order.

I repeat them again because they’re worth looking at.

INC on November 18, 2012 at 2:32 PM

the Obama administration might end up having to explain why its best and brightest minds either couldn’t comprehend the First Amendment, or thought they could succeed in an end-run that would effectively neuter it without the courts noticing.

Evidently the Obama Administration is it’s own religion. And we all know who it’s titular head is.

GarandFan on November 18, 2012 at 2:33 PM

This is encouraging news…

workingclass artist on November 18, 2012 at 2:34 PM

s/b

To be asked forced to pay for abortifacients prohibits the free exercise of our Christian faith.

INC on November 18, 2012 at 2:36 PM

Wow. Freedom of Religion. What a concept. Why, you know, you start your own country because of a concept like that…/

kingsjester on November 18, 2012 at 2:37 PM

INC on November 18, 2012 at 2:29 PM

I get it. By why isn’t the argument also being made that there is no compelling reason for contraception coverage in the first place? If the supreme court can find a right to privacy in Griswold for people to buy contraception then it should be no great leap to suggest they should be the ones who pay for it.

Why should prescription contraception be covered by health insurance by law? Non-prescription isn’t. Not being pregnant is something you elect to do. The government has no business forcing anyone to pay for someone elses choices.

Rocks on November 18, 2012 at 2:39 PM

the Obama administration might end up having to explain why its best and brightest minds either couldn’t comprehend the First Amendment, or thought they could succeed in an end-run that would effectively neuter it without the courts noticing.

If you read the SG brief in Hosanna-Tabor, you see that they re-define “freedom of religion” to “freedom to worship.” Thus, you can do what you want in your house of worship or seminary, ordain who you will, and hire employees for the house of worship or seminary, but in everything else you are just another non-profit corporation.

Wethal on November 18, 2012 at 2:43 PM

Why should prescription contraception be covered by health insurance by law? Non-prescription isn’t. Not being pregnant is something you elect to do. The government has no business forcing anyone to pay for someone elses choices.

Rocks on November 18, 2012 at 2:39 PM

The administration defines it as “preventative health care,” like flu shots and annual physicals, which can only be done by medical providers.

Wethal on November 18, 2012 at 2:45 PM

The administration defines it as “preventative health care,” like flu shots and annual physicals, which can only be done by medical providers.

Wethal on November 18, 2012 at 2:45 PM

Vaccines and physicals help to prevent disease. Pregnancy is not a disease. Condoms actually do prevent disease to a degree. Why aren’t condoms covered? The mere fact that we require a doctor to prescribe something doesn’t make it health care.

Rocks on November 18, 2012 at 2:53 PM

The first amendment never mentions the word “church” and, in any event, the word “church” merely means “the called out ones” or all regenerate Christians. It has nothing to do with a building, or specific congregation or denomination.

tommyboy on November 18, 2012 at 2:55 PM

Obama doesn’t give a sh*t. He’ll eventually issue an EO overruling the Court, or have this publishing house audited up the as*. The plaintiff can keep on seeking injunctions or finally just give up. That’s the long game here — to get us all to give up fighting for our liberties. He knows the Republicans have no stuffing for such a fight.

rrpjr on November 18, 2012 at 2:58 PM

I have a silly question, if these companies are in states where the governors are not going with bhocare, wouldn’t that negate the need for courts finding as they did with the Bible publisher or even Catholic hospitals, etc.?
L

letget on November 18, 2012 at 2:58 PM

Why should prescription contraception be covered by health insurance by law? Non-prescription isn’t. Not being pregnant is something you elect to do. The government has no business forcing anyone to pay for someone elses choices.

Rocks on November 18, 2012 at 2:39 PM

It does irritate me that we are always arguing about the woman’s choices regarding prevention of pregnancy. When will women start noticing that all these issues are being pushed mostly by men, and many of these drugs are actually bad for them?

I recently had my annual physical and discussed with my Dr. how I can prevent bone loss as I get older. He mentioned that doctors are seeing alarming rates of bone loss in women my age who used Depo-Provera as a contraceptive. He says he strongly recommends against this drug for young women but still has patients that insist on it because it is a shot that lasts for 3 months. Some women don’t even want to be bothered to take a pill every day, and they don’t care that it could lead to serious health problems for them later. Planned Parenthood still hawks Depo-Provera, though they style themselves as the protectors of women’s health.

Planned Parenthood and others argue that oral and injected contraceptives for women are the only “sure” way to prevent unwanted pregnancies, and thus they should be covered by insurance. PP stands to make a fortune from insurance reimbursements for drugs it now dispenses free of charge.

rockmom on November 18, 2012 at 3:01 PM

so what?

Pragmatic on November 18, 2012 at 3:02 PM

This is an argument the right will lose. Chiefly because, like with gay marriage, they chose the wrong defense.In gay marriage the argument should have been “Is it marriage?” which obviously it is not.But instead we allowed the left to make it about the value of same sex unions.

This x 1,000

Getting into a morality dispute is a fool’s errand because the left have no morals. They also have no shame which is why they are happy to attack actual morality without a shred of regret or acknowledgement that they freely substitute emotion for logic.

jangle12 on November 18, 2012 at 3:05 PM

In the meantime, these injunctions mean that employees of these organizations are free to buy their own contraception, just as they buy their own food, clothes, cell phones, and over-the-counter medication…

But I thought the government provided cell phones to everyone!?!

KS Rex on November 18, 2012 at 3:12 PM

Wait a minute. This can’t be right. Boehner told everyone to fall in line, that ObamaCare was the law of the land.

JellyToast on November 18, 2012 at 3:21 PM

Vaccines and physicals help to prevent disease. Pregnancy is not a disease. Condoms actually do prevent disease to a degree. Why aren’t condoms covered? The mere fact that we require a doctor to prescribe something doesn’t make it health care.

Rocks on November 18, 2012 at 2:53 P

Feminists consider unplaaned pregnancy just another unwanted physical condition. Really.

Prescription drugs are covered because they can be provided through a regulated entity, such as a pharmacy, that can bill the insurance carrier.

Non-prescription drugs would be hard to reimburse, if the customer also bought shampoo, Q-tips, batteries, etc., in the same purchase.

Also, limiting reimbursement to prescription drugs supposedly limtis it to medically necessary drugs, while people will “self-treat” with non-prescription drugs without seeing a doctor (Of course, doctors will tell you to take two aspirin…)

Wethal on November 18, 2012 at 3:24 PM

The first amendment never mentions the word “church” and, in any event, the word “church” merely means “the called out ones” or all regenerate Christians. It has nothing to do with a building, or specific congregation or denomination.

tommyboy on November 18, 2012 at 2:55 PM

So what’s your point?

Night Owl on November 18, 2012 at 3:29 PM

INC on November 18, 2012

…thanks for the links INC!

KOOLAID2 on November 18, 2012 at 3:31 PM

While this is certainly good news, it’s disturbing to read just how carefully the reasoning had to be applied to fit just this one example. If Tyndale had been less cautious in forcing their for-profit business to be closely-owned by the non-profit religious organization, this could have gone the other way, easily.

A crucial distinction also between this case and some of the cases involving Catholic institutions is that Tyndale and other non-Catholic organizations had no religious object to contraceptives per se, but to those items defined as contraceptives that are in fact abortifacients.

This makes a difference, because Tyndale was willing to provide and pay for most contraceptives mandated by the plan, but objected to the abortifacients. Therefore, it was harder for the government to make the case that Tyndale was not providing contraceptives.

For Catholic organizations, obviously, there is no such escape clause, since they believe all contraceptives are sinful. I believe they are wrong, but that hardly matters, as long as it is their religious belief.

There Goes The Neighborhood on November 18, 2012 at 3:34 PM

So what’s your point?
Night Owl on November 18, 2012 at 3:29 PM

That the administration’s defense doesn’t make a point. So, to your question I say, “Exactly!”

tommyboy on November 18, 2012 at 3:36 PM

The first amendment never mentions the word “church” and, in any event, the word “church” merely means “the called out ones” or all regenerate Christians. It has nothing to do with a building, or specific congregation or denomination.

tommyboy on November 18, 2012 at 2:55 PM

So what’s your point?

Night Owl on November 18, 2012 at 3:29 PM

I haven’t seen a response from tommyboy, but I would speculate he is making the point that you can’t restrict First Amendment freedom of religion to only churches or specific religious organizations.

The Obama administration is using the old progressive approach of trying to claim religious protections are only allowed for churches.

There Goes The Neighborhood on November 18, 2012 at 3:37 PM

The First Amendment refers to the “Congress shall make no law … prohibiting the free exercise of religion.”

The phrase “separation of church and state” comes from a letter from Jefferson to a Baptist church. That phrase was picked up in a SCOTUS opinion as one way of explaining the First Amendment on religion, and now many people probably think it is the actual constitutional language, or at least the “official” definition of freedom of religion.

Wethal on November 18, 2012 at 3:48 PM

That the administration’s defense doesn’t make a point. So, to your question I say, “Exactly!”

tommyboy on November 18, 2012 at 3:36 PM

I haven’t seen a response from tommyboy, but I would speculate he is making the point that you can’t restrict First Amendment freedom of religion to only churches or specific religious organizations.

The Obama administration is using the old progressive approach of trying to claim religious protections are only allowed for churches.

There Goes The Neighborhood on November 18, 2012 at 3:37 PM

Thanks. I’m not very religious although I am very interested in protecting the First Amendment and the freedom of religious organizations to live according to their beliefs.

Night Owl on November 18, 2012 at 3:49 PM

Thanks. I’m not very religious although I am very interested in protecting the First Amendment and the freedom of religious organizations to live according to their beliefs.
Night Owl on November 18, 2012 at 3:49 PM

Now you are falling into the Obama administration’s trap. The right to fee exercise of religion isn’t just for “religious organizations”. Like each of the the amendments, it applies all citizens, both individually and as groups.

tommyboy on November 18, 2012 at 3:55 PM

tommyboy on November 18, 2012 at 3:55 PM

Hey! Don’t nitpick! I’ve had a hard few days and I’m tired. I haven’t fallen into a trap, I just worded that response badly- LOL!

Night Owl on November 18, 2012 at 4:20 PM

I’m getting on the blame Bush bandwagon, if for nothing else, to make me feel better.
Homeland Security, TSA, TARP, & Justice Roberts…to name a few. If Roberts had not been a phony conservative, Obamacare would be gone.
oops, I still feel lousy; didn’t plan to be living under Socialism.
Think I’ll read 1984 again so I can get further depressed.

Belle on November 18, 2012 at 4:21 PM

Feminists consider unplaaned pregnancy just another unwanted physical condition. Really.

Prescription drugs are covered because they can be provided through a regulated entity, such as a pharmacy, that can bill the insurance carrier.

Non-prescription drugs would be hard to reimburse, if the customer also bought shampoo, Q-tips, batteries, etc., in the same purchase.

Also, limiting reimbursement to prescription drugs supposedly limtis it to medically necessary drugs, while people will “self-treat” with non-prescription drugs without seeing a doctor (Of course, doctors will tell you to take two aspirin…)

Wethal on November 18, 2012 at 3:24 PM

That’s nice. There are many prescription drugs insurance does not cover. They certainty won’t cover pain killers if you choose to get a tummy tuck. I was recently prescribed a certain shaving creme due to shaving causing acne. It wasn’t covered. Insurance often doesn’t cover things like canes or crutches despite being prescribed. Having an unwanted physical condition, like pregnancy, does not warrant other people paying for it.
Health care implies some disease or attempt to stop said disease.

The idea that we have bought into it does not just shows how much ground has already been conceded.

Rocks on November 18, 2012 at 4:33 PM

The Obama administration is using the old progressive approach of trying to claim religious protections are only allowed for churches.

There Goes The Neighborhood on November 18, 2012 at 3:37 PM

In other words, the religious protections end once you step off the property where your church building sits.

I doubt Mr. Obama is going to win even one of these.

unclesmrgol on November 18, 2012 at 5:00 PM

This is an argument the right will lose. Chiefly because, like with gay marriage, they chose the wrong defense.In gay marriage the argument should have been “Is it marriage?” which obviously it is not.But instead we allowed the left to make it about the value of same sex unions.

http://www.france24.com/en/20121117-thousands-rally-paris-against-proposed-same-sex-marriage-law-gay-rights-protest-france

davidk on November 18, 2012 at 5:08 PM

Obama doesn’t care if the contraception mandate goes down. It was all about motivating single women to get out the vote for him. Now that he’s re-elected, he could care less about it.

ardenenoch on November 18, 2012 at 5:46 PM

yay for them.

FlatFoot on November 18, 2012 at 6:56 PM

SWalker on November 18, 2012 at 3:32 PM

You didn’t happen to see this and this yesterday, did you?

My blood pressure is still in the stratosphere from reading both articles.

PatriotGal2257 on November 18, 2012 at 7:01 PM

Obama always knew this crazy HHS mandate was going nowhere long term. It only needed to be taken ‘seriouslly’ during the election when all the young ” Julias” were paying attention to the election and voting for their messiah

Thie HHS contraception mandate is obviously unconstitutional..What does Obama care, post election, what the courts decide? He could care less! He already won votes from his duped stupid young female constituency.

marybel on November 18, 2012 at 7:57 PM

Good news indeed.

Nor is there any dispute that Tyndale’s primary owner, the Foundation, can ‘exercise religion’ in its own right, given that it is a non-profit religious organization; indeed, the case law is replete with examples of such organizations asserting cognizable free exercise and RFRA [Religious Freedom Restoration Act] challenges.”

For those who believe that corporations are excluded from the freedom of speech, once again the court has ruled that organizations have the same rights as individuals. Otherwise, what’s to prevent the govt from entering and searching a place of business or any other example of individual rights?

AH_C on November 18, 2012 at 11:48 PM

This is all irrelevant.

Part of Obamacare will be struck down by courts. Parts will effectively be circumvented by states. Other parts will go into effect. And it will all be unworkable. And all of this is by design.

Obamacare is not an end unto itself. It is just the stepping stone. They knew the political climate was not favorable to single payer, so they instead created this great facade of “we’re going to do a hybrid system in which private insurance companies still exist and states have lots of control.”

Then, in a few years, they’ll come back and say, “See, we tried compromise and it was an utter failure. We need single payer.”

Everything that causes Obamcare to be more unworkable is one more step on the road to single payer.

Shump on November 19, 2012 at 9:37 AM


cptacek on February 13, 2012 at 3:25 PM

cptacek on November 19, 2012 at 1:41 PM