Appeals court issues injunction against HHS contraception mandate

posted at 8:01 am on November 29, 2012 by Ed Morrissey

An appeals court delivered some bad news to the Obama administration, but good news to those who value freedom of religious expression and conscience.  An appeals court imposed a temporary injunction against the Department of Health and Human Services from enforcing its contraception mandate on a privately-owned business, the first action at this level:

A federal appeals court today issued an order granting a motion for a preliminary injunction that temporarily blocks the implementation of the HHS mandate against a Missouri business owner.

The decision is the first occasion on which a pro-life plaintiff has secured a legal victory against the HHS mandate at the federal appeals court level. Most of the dozens of cases against the HHS mandate are still at the federal district court level.

The order, issued by a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit, puts the HHS mandate on hold pending the outcome of the appeals process, prohibits the Department of Health and Human Services (HHS) from requiring the business owner, who contends the mandate violates his constitutionally-protected religious beliefs, to comply with the mandate which requires employers to purchase health insurance for their employees that includes coverage for contraceptives, sterilization, and abortion-inducing drugs.

In even better news, this reverses one of the few victories that HHS had at the district court level:

Missouri business owner Frank O’Brien, who employs 87 people at O’Brien Industrial Holdings, alleged in the lawsuit that led to the injunction that the mandate unconstitutionally infringes on his religious beliefs.

On its website, the company says its mission is “to make our labor a pleasing offering to the Lord while enriching our families and society.” O’Brien is a Catholic….

A federal district court judge in October dismissed O’Brien’s claim at the request of the Obama administration. The American Center for Law and Justice (ACLJ), which is representing O’Brien, then appealed the ruling on his behalf to the 8th Circuit.

The Daily Caller notes that the injunction does not address the merits of the case, which in fact none of the cases yet have done.  All of the district court action until now have either been dismissals due to a lack of ripeness or temporary injunctions.  In order to win temporary injunctions, though, petitioners usually have to show that (a) they have a substantial likelihood of prevailing on the merits, and (b) they will suffer irreparable harm unless an injunction is issued.  It’s not a guarantee of victory, but it is a sign that the court takes the issue seriously and recognizes that damage may be done without intervention.

Once again, this case doesn’t involve an explicitly religious organization, either.  Cases involving religious schools, health-care organizations, or charities have yet to come to court.  So far, HHS and the Obama administration keep losing on what should be their best ground.


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Prepare for the 8th Circuit to be demonized.

Washington Nearsider on November 29, 2012 at 8:04 AM

Ultimately, Obama is going down on this issue. It’s a shame so much time and money is going into beating him back on this issue. Too bad the plaintiffs all around the country can’t recover attorneys fees from Obama–personally.

BuckeyeSam on November 29, 2012 at 8:07 AM

But the Roberts Cour…er, Lawgivers-In-Black will reverse the 8th.

Steve Eggleston on November 29, 2012 at 8:08 AM

good news to those who value freedom of religious expression and conscience.

IMO, this was always the known outcome. The HHS Secretary getting out there and claiming that Catholics secretly were happy their government was forcing the church to pay for Flukecare never held water.

But let’s keep in mind when the injunction occurred. After the election. The votes for all the silly stupid women for which this issue resonated have been purchased. Not following through post-election is just par for the course for the rat-eared wonder and his merry band of socialists, communists, anarchists, atheists, and Chicago thugs, and anti-American radicals (but I repeat myself).

Happy Nomad on November 29, 2012 at 8:10 AM

In order to win temporary injunctions, though, petitioners usually have to show that (a) they have a substantial likelihood of prevailing on the merits, and (b) they will suffer irreparable harm unless an injunction is issued.

or (c) take a leftist position against a Republican law such as voter ID or collective extortion privileges for public employees.

forest on November 29, 2012 at 8:11 AM

I wouldn’t be surprised if the admnistration expected this, and really doesn’t care. This was part of the “war on women” campaign to get the skank vote, just like vague promises about student loans got the student vote.

Now that Obama won, the mandate doesn’t matter as much, except to the extent that the government can make religion peripheral in the public square. After Hosanna-Tabor, it was clear that would be hard going, although the school in Hosanna was a religious high school. Religion and the family have always competed with the state for loyalty and providing material needs.

Wethal on November 29, 2012 at 8:14 AM

The simplest solution to this, and almost all health insurance issues, is to let people but their own health insurance and get employers out of the health insurance business. Employers could pay their employees a tax exempt stipend the employee could then use to purchase health insurance.

But it’s far too late for that.

The power hungry control freak socialists are opposed to such free market solutions. All power must be vested in the state so it can engage in socialist social engineering in the interest of “social justice”.

But it’s good to see a few victories in the courts. They may be short lived if Dear Leader gets to add another leftist judge to SCOTUS, and that is almost certain to occur in the next four years.

farsighted on November 29, 2012 at 8:14 AM

The number 8 is racist

Electrongod on November 29, 2012 at 8:14 AM

Obama should be impeached for abuse of power on this issue alone.
Not to mention all the others that go unmentioned. This is a target rich environment.

The Rock on November 29, 2012 at 8:16 AM

Yeah baby. It may be short lived but that’s some of the best news we’ve had since the election.

gophergirl on November 29, 2012 at 8:17 AM

Poor flukie

cmsinaz on November 29, 2012 at 8:19 AM

farsighted on November 29, 2012 at 8:14 AM

I agree.

I always thought a great idea would be if they could come up with some sort of base insurance and then you pick your ad ons. So men don’t have to pay for maternity care, you can pick or choose mental health coverage etc.

gophergirl on November 29, 2012 at 8:19 AM

Obama should be impeached for abuse of power on this issue alone.
Not to mention all the others that go unmentioned. This is a target rich environment.

The Rock on November 29, 2012 at 8:16 AM

Except he knows that never will happen.

His SOP is to make a power grab (EPA regs, infringing in on religion), and then sitting back while someone spends the time (years) and money to challenge him all the way to the Supreme Court. Texas seems willing to take on Obama in environmental matters, and there are several consrevative groups (American Center for Law & Justice bein one) that will take on First Amendment challenges for people who can’t afford to.

The critical step is to get an injunction early on.

Wethal on November 29, 2012 at 8:20 AM

Oops.

Except he knows that never will happen.

His SOP is to make a power grab (EPA regs, infringing in on religion), and then sitting back while someone spends the time (years) and money to challenge him all the way to the Supreme Court. Texas seems willing to take on Obama in environmental matters, and there are several consrevative groups (American Center for Law & Justice bein one) that will take on First Amendment challenges for people who can’t afford to.

The critical step is to get an injunction early on.

Wethal on November 29, 2012 at 8:21 AM

Why can’t we oppose the contraception mandate on the basis that oral contraceptives increase women’s risk of breast cancer, cervical cancer and liver tumors? This is from National Cancer Institute, under the umbrella of HHS.

http://www.cancer.gov/cancertopics/factsheet/Risk/oral-contraceptives
Key Points

A number of studies suggest that current use of oral contraceptives (birth control pills) appears to slightly increase the risk of breast cancer, especially among younger women. However, the risk level goes back to normal 10 years or more after discontinuing oral contraceptive use.
Women who use oral contraceptives have reduced risks of ovarian and endometrial cancer. This protective effect increases with the length of time oral contraceptives are used.
Oral contraceptive use is associated with an increased risk of cervical cancer; however, this increased risk may be because sexually active women have a higher risk of becoming infected with human papillomavirus, which causes virtually all cervical cancers.
Women who take oral contraceptives have an increased risk of benign liver tumors, but the relationship between oral contraceptive use and malignant liver tumors is less clear.

Please forward to every Julia you know.

monalisa on November 29, 2012 at 8:21 AM

The number 8 is racist

Electrongod on November 29, 2012 at 8:14 AM

Yep

forest on November 29, 2012 at 8:26 AM

The 8th CCoA is asking to be made irrelevant. To stay relevant in the New Order, you must give Dear Leader what he wants….

rwenger43 on November 29, 2012 at 8:29 AM

The 8th CCoA is asking to be made irrelevant. To stay relevant in the New Order, you must give Dear Leader what he wants….

rwenger43 on November 29, 2012 at 8:29 AM

Why Reid wants to get rid of the filibuster. Obama wants to pack the federal judiciary with liberals appointed for life. It now takes 60 votes in the Senate to move to a floor vote on the nomination.

Wethal on November 29, 2012 at 8:34 AM

Good thing the case wasn’t heard before the Ninth Circuit. I bet those maniacs would claim contraception is a civil right.

Liam on November 29, 2012 at 8:40 AM

Good thing the case wasn’t heard before the Ninth Circuit. I bet those maniacs would claim contraception is a civil right.

Liam on November 29, 2012 at 8:40 AM

Conservatives know which circuit to pick, just like the liberals do. Unfortunately, Obama’s nominations are going to affect even the conseravative circuits eventually.

Wethal on November 29, 2012 at 8:50 AM

Good thing the case wasn’t heard before the Ninth Circuit. I bet those maniacs would claim contraception is a civil right.

Liam on November 29, 2012 at 8:40 AM

Abstinence is the best contraception.

Mitoch55 on November 29, 2012 at 8:58 AM

I always thought a great idea would be if they could come up with some sort of base insurance and then you pick your ad ons. So men don’t have to pay for maternity care, you can pick or choose mental health coverage etc.

gophergirl on November 29, 2012 at 8:19 AM

That is a good idea. However, they currently need the young and healthy to pay premiums for all sorts of coverage they don’t need in the near-term in order to keep rates from being too high for others.

dedalus on November 29, 2012 at 8:59 AM

That is a good idea. However, they currently need the young and healthy to pay premiums for all sorts of coverage they don’t need in the near-term in order to keep rates from being too high for others.

dedalus on November 29, 2012 at 8:59 AM

More and more wealth transfers from the young poor to the old wealthy. The baby boomers need to be cut off cold turkey and shot if they riot over it.

astonerii on November 29, 2012 at 9:07 AM

There was a time, in the long long ago, when there was some confidence in our judicial system and in the overall legal wisdom of our Supreme Court.

Today?

Obamacare will be upheld…it already has been, and states will be sued to make sure they all set up “insurance exchanges” and all the other enforcement of Obamacare as required by law, and upheld by the Robert’s Court.

Emperor, Field Marshal, Doctor, President for Life Barack Hussein Obama Amin has declared it to be so.

So it is written, so shall it be done.

All it takes folks is for a simple-minded majority to cast ballots in return for promises of free stuff…and the whole thing we once knew is shot to hell.

coldwarrior on November 29, 2012 at 9:15 AM

So I guess Obama can start threatening the courts again. Telling them he knows that his mandate is constitutional.

Yeah… it’s ok for Obama to threaten courts publicly telling them “he knows” ObamaCare or whatever is constitutional. But don’t go letting Newt say congress has the authority to call judges to testify and have them defend their decisions in a public hearing.

JellyToast on November 29, 2012 at 9:23 AM

I always thought a great idea would be if they could come up with some sort of base insurance and then you pick your ad ons. So men don’t have to pay for maternity care, you can pick or choose mental health coverage etc.

gophergirl on November 29, 2012 at 8:19 AM

Indeed. Though, as we saw in early November, clearly a majority of the country needs that mental health coverage ;)

changer1701 on November 29, 2012 at 9:32 AM

More and more wealth transfers from the young poor to the old wealthy. The baby boomers need to be cut off cold turkey and shot if they riot over it.

As a baby boomer myself, my request would be that you restrict your violence to those of us who belong to the AARP.

DaveDief on November 29, 2012 at 9:40 AM

As a baby boomer myself, my request would be that you restrict your violence to those of us who belong to the AARP.

DaveDief on November 29, 2012 at 9:40 AM

Advertise a discount if they use their AARP card to flush them out!

Happy Nomad on November 29, 2012 at 9:57 AM

More and more wealth transfers from the young poor to the old wealthy. The baby boomers need to be cut off cold turkey and shot if they riot over it.

astonerii on November 29, 2012 at 9:07 AM

As a baby boomer myself, my request would be that you restrict your violence to those of us who belong to the AARP.

DaveDief on November 29, 2012 at 9:40 AM

I too, as boomer, would hope you’d restrict that violence to those boomers who voted for this socialist and didn’t work their a$$es off to keep him from being re-elected. Alot of us boomers have never taken a dime from the government and have helped support our elderly parents who fought the wars that kept this nation free, at least up until now. Bottom line, I really resent your comment about shooting us.

TxAnn56 on November 29, 2012 at 10:08 AM

It would be terrific if the whole crap sandwich got tossed over this.

Are there supposed to be images in that second block quote?

dogsoldier on November 29, 2012 at 10:12 AM

aSS-teronii, it’s time for the ban hammer… calling for the shooting of babyboomers is the last straw matey…

I hope the hammer comes down swiftly…

Good Day aSS-teronii

Scrumpy on November 29, 2012 at 10:39 AM

Oh and those of you who are siding with that idiot!

DaveDief on November 29, 2012 at 9:40 AM

Happy Nomad on November 29, 2012 at 9:57 AM

TxAnn56 on November 29, 2012 at 10:08 AM

Scrumpy on November 29, 2012 at 10:41 AM

More and more wealth transfers from the young poor to the old wealthy. The baby boomers need to be cut off cold turkey and shot if they riot over it.

astonerii on November 29, 2012 at 9:07 AM

As a baby boomer myself, my request would be that you restrict your violence to those of us who belong to the AARP.

DaveDief on November 29, 2012 at 9:40 AM

I too, as boomer, would hope you’d restrict that violence to those boomers who voted for this socialist and didn’t work their a$$es off to keep him from being re-elected. Alot of us boomers have never taken a dime from the government and have helped support our elderly parents who fought the wars that kept this nation free, at least up until now. Bottom line, I really resent your comment about shooting us.

TxAnn56 on November 29, 2012 at 10:08 AM

I hedged to just the rioting ones.

I do not mean it though.

I would be OK with a wind down of the program over some period of time. The problem is that it has been winding upwards lately, and is getting worse… I do not understand how the rest of the population puts up with it. I guess they are still thinking of the good old days when payouts were 100 times the pay in. I dunno. It just makes me bitter and I am already past the halfway point to collecting myself.

astonerii on November 29, 2012 at 11:25 AM

aSS-teronii, it’s time for the ban hammer… calling for the shooting of babyboomers is the last straw matey…

I hope the hammer comes down swiftly…

Good Day aSS-teronii

Scrumpy on November 29, 2012 at 10:39 AM

call a wambulance loser.

astonerii on November 29, 2012 at 11:27 AM

aSS-teronii, it’s time for the ban hammer… calling for the shooting of babyboomers is the last straw matey…

I hope the hammer comes down swiftly…

Good Day aSS-teronii

Scrumpy on November 29, 2012 at 10:39 AM

Excellent point. Strangling is a more appropriate method, and more satisfying.

/Somehow, I just know if I don’t add a sarc tag here someone will take me seriously

tom on November 29, 2012 at 11:30 AM

1. We do not operate in this country under a rule of law. The courts will eventually rule as the politicians in power desire.

2. Expect the 8th Circuit to finally rule on the merits that functionally, the interests of the State over-ride the actual practice of religion outside the bounds of a church.

3. If the 8th Circuit should prolong the game and rule against the Mandate, the Supreme Court will strike it on the grounds that having ruled already that anything that can be read as a tax is a proper function of the government that can be done regardless of the Bill of Rights, and that Obamacare was ruled to be a tax, that the argument is moot.

Do not have confidence in the Constitution being upheld or supported for the people against the government. It will not happen again in our lifetimes.

Subotai Bahadur on November 29, 2012 at 1:42 PM

It’s not a coverage requirement, it’s a tax.

/Roberts

The Schaef on November 29, 2012 at 2:34 PM

Subotai Bahadur on November 29, 2012 at 1:42 PM

I was going to post something along these lines but I couldn’t have put it better. Nice post. :)

Theophile on November 29, 2012 at 7:14 PM

I think it would be great if the law went down in flames over this issue but right now, after the Roberts fiasco, I don’t have any confidence in the Supreme Court. I will blame Roberts along with Obummer personally if my disabled child is harmed due to her health care being taken away and my husband and me running out of savings to pay cash for care she needs.

sherrimae on November 30, 2012 at 12:42 AM