Nov. 2, 2012

A federal judge in Michigan has become the second in the nation to say he would halt the federal government’s enforcement of the Obamacare mandate that employers pay for abortifacients regardless of their religious views.

Writing that “a preliminary injunction would serve the public interest,” Judge Robert H. Cleland said in a decision issued late Wednesday that he would issue the order.

“The potential for harm to plaintiffs exists, and with the showing plaintiffs have made thus far of being able to convincingly prove their case at trial, it is properly characterized as irreparable.”

The case was brought against the federal government by the Thomas More Law Center on behalf of Legatus, a coalition of Catholic business owners, Daniel Weingartz and his company, Weingartz Supply.

The judge’s decision means the federal government will not be allowed to enforce its abortion mandate against the company until the lawsuit is resolved. The decision does not affect Legatus, the judge ruled, because, as a nonprofit, the rules for that application remain in development.

Erin Mersino, the lead counsel on the case for the plaintiffs, said: “The federal court has found that our clients have a likelihood of success and would be irreparably harmed by the unconstitutional overreaching of the HHS mandate. This is not only a victory for our clients, but for religious freedom.”

In an earlier case in Denver, WND reported when U.S. District Judge John J. Kane of Colorado granted Hercules Co. owners Andy Newland and other family members a similar order preventing enforcement of the mandate against the family-owned company.

The “mandate” is a set of regulations adopted by Barack Obama’s Department of Health and Human Services, run by the emphatically pro-abortion Kathleen Sebelius, that forces employers, regardless of religious faith, to provide insurance coverage for abortion-inducing drugs, sterilization and contraception under threat of financial penalties.

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” Cleland wrote. “The harm in delaying the implementation of a statute that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs. The balance of harms tips strongly in plaintiffs’ favor. A preliminary injunction is warranted.”

The case was brought over the provisions of the Obamacare law that demand Americans buy products from insurance companies or face government penalties of thousands of dollars. It was filed against Sebelius, Labor Secretary Hilda Solis, Treasury Secretary Tim Geithner and others.

The judge said the injunction would not apply to Legatus since, as a nonprofit, the rules applying to that group of organizations was not yet final.

The judge ordered the government to file a statement describing the status of the rules.

The case alleges the Obama administration is violating the First Amendment’s Free Exercise of Religion and Free Speech clauses as well as the Religious Freedom Restoration Act and the Administrative Procedure Act.

The opinion has been posted online.

The rules adopted specifically demand that employers pay for coverage of the “full range” of procedures allowed by the Food and Drug Administration, such as Plan B abortifacients and Ella abortifacients.

Weingartz’ company sells outdoor power equipment and employs about 170 people.

Cleland specifically rejected arguments from the government that the company is secular and has no right to exercise a religious perspective, regardless of what the owner believes.

“At least one circuit has held that ‘a corporation has standing to assert the Free Exercise rights of its owners’ when that corporation is closely held and ‘merely the instrument through and by which [the plaintiffs] exercise their religious beliefs,” he wrote.

“Further, the Supreme Court has famously recognized the First Amendment free-speech protection extends directly to corporations,” he said, citing the Citizens United case.

He noted that previous rulings have held a corporation “is an extension of the beliefs of [its owners], and for all purposes, the beliefs of [its owners] are the beliefs and tenets of the [corporation].”

He said the company has an independent First Amendment right to free exercise of religion, a point that Obama’s lawyers had argued against.

He also said he remains uncertain whether the government “will be able to prove a compelling interest in promoting the specific interests at issue in this litigation.”

In the Weingartz case, Department of Justice attorneys specifically argued the challenge “rests largely on the theory that a self-described secular corporation established to sell outdoor power equipment can claim to exercise religion and thereby avoid the reach of laws designed to regulate commercial activity.”

“This cannot be,” the Justice attorneys said.

The federal attorneys – Stuart F. Delery, Barbara L. McQaude, Sheila M. Lieber, Michelle Bennett and Ethan P. Davis – said, “It would also cripple the government’s ability to solve national problems through laws of general application.”

They said the goals of the government – “improving the health of women and children and equalizing the playing field for women and men” – is so important that even if the regulations are a burden on religious rights, the court should affirm them.

“The government may substantially burden the exercise of religion if it ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest,’” they said.

They argued that whatever the religious beliefs of the owners, the fact that the company is set up as a corporation means the government can order it to do anything the government wants, irrespective of the owner’s beliefs.

“This case should begin and end with plaintiffs’ admission that Weingartz Supply Company is a secular employer and with the undisputed facts that confirm that admission,” they said.

They said the requirement for companies to have their health care plans provide abortifacients has nothing to do with the owner of the company or his religious beliefs.

“By their terms, the regulations apply to group health plans and health insurance issuers. Mr. Weingartz is neither. The regulations do not impose any obligations on individuals.”

And they concluded abortificients are critical to health care in today’s world.

“Increased access to contraceptive services is a key part of these predicted health outcomes, as a lack of contraceptive use has proven to have negative health consequences for both women and a developing fetus,” the federal attorneys explained.

They did not argue that there would be no damage to the company or its owner but said it simply doesn’t matter.

“Any potential harm to plaintiffs resulting from their desire not to provide contraceptive coverage is thus outweighed by the significant harm an injunction would cause to the public,” they wrote.

Dozens of cases have been filed against the government over the issue, including one by the Alliance Defending Freedom on behalf of Tyndale House Publishers.

In that case, the Obama administration argued the Bible publisher is not religious for the purposes of being a religious employer.

Tyndale House is one of the world’s largest privately held Christian publishers of books and Bibles. But Obamacare demands it purchase the abortion services because it is classified as “categorically non-religious.”

That’s even though it is owned by the nonprofit Tyndale House Foundation, through which profits are funneled to be donated to various charities.

“Bible publishers should be free to do business according to the book that they publish,” said Senior Legal Counsel Matt Bowman. “To say that a Bible publisher is not religious is patently absurd. Tyndale House is a prime example of how ridiculous and arbitrary the Obama administration’s mandate is. Americans today clearly agree with America’s founders: the federal government’s bureaucrats are not qualified to decide what faith is, who the faithful are, and where and how that faith may be lived out.”

WND recently reported in the Denver case, while Obama says he holds “unwavering” support for religious freedom, attorneys representing a Colorado family said the actions of his Department of Justice reflect exactly the opposite.

The department has filed an appeal to force the Newland family of Denver, which owns Hercules Industries, to violate their beliefs in the operation of their company, in a case also handled by the ADF.

A trial judge ordered that the mandate could not be enforced immediately against the family that owns Hercules.

But administration lawyers have filed a notice of appeal, in a document signed by Michelle Bennett, that seeks to have the arguments moved to the 10th U.S. Circuit Court of Appeals.

“Every American, including family business owners, should be free to live and do business according to their faith,” said Bowman. “The Obama administration claims ‘unwavering’ support for religious freedom, but this appeal demonstrates that the only thing unwavering is the administration’s tenacious opposition to that freedom.

“The cost of religious freedom for this family could be millions of dollars per year in fines that would cripple their business and potentially destroy jobs if the administration ultimately has its way,” Bowman said. “In filing its appeal today, the administration sent a clear message that it wants to force families to abandon their faith in order to earn a living. That’s the opposite of religious freedom.”

ADF reports the U.S. Department of Health and Human Services could penalize the family millions of dollars per year if they don’t agree to violate their religious faith.

But it was Obama who said his “Christian faith” has guided his presidency, and, “In a changing world my commitment to protecting religious liberty is and always will be unwavering.”

Obama’s statement:

 

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