Obama Admin Loses 10, Wins 4 Contraception Mandate Lawsuits

By Alex Murashko, CP Contributor Tuesday, January 15, 2013

The Obama administration's record in cases litigated so far involving the contraceptive mandate is at 10 losses and only four wins, according to Alliance Defending Freedom, which released a "scorecard" of the more than 40 cases so far over the Health and Human Services requiring employers, including religious organizations, to provide insurance that cover contraception, sterilization and some abortifacient drugs.

"Americans should be free to honor God and abide by their consciences at work, home, and church," said ADF Senior Legal Counsel Matt Bowman. "Washington politicians can't confine our faith to the four walls of our homes and churches alone. Honoring God is important every day, in all areas of life, including in our work. The Obama administration's attacks on faith and business prove that it doesn't respect either one."

ADF and allied attorneys filed a motion for an emergency injunction last Friday following a notice of appeal filed in a lawsuit challenging the abortion pill mandate on behalf of Grote Industries, based in Indiana. The emergency motion in Grote Industries v. Sebelius seeks to suspend the mandate against the Catholic-owned auto lighting manufacturer while its appeal of a district court decision goes forward.

In a similar ADF lawsuit filed on behalf of a non-profit college, Louisiana College v. Sebelius, a federal judge has refrained from granting the administration's motion to dismiss and instead issued a stay order last Friday that preserves the college's lawsuit and religious freedom claims through August. Rather than dismiss the case as the administration had requested, the court ordered the administration to provide an update of rules related to the mandate at that time.

Additional court deadlines are approaching next week for the administration in two other abortion pill mandate challenges: Tuesday is the deadline for the administration to appeal the injunction issued against the abortion pill mandate in Tyndale House Publishers v. Sebelius, and Jan. 18 is the deadline for the administration's opening brief appealing another injunction issued against the mandate in favor of Colorado's Hercules Industries in Newland v. Sebelius.

"It is quite a challenge to keep track of the large and growing number of legal challenges to the HHS contraceptive/abortifacient mandate," ADF Senior Counsel Gregory S. Baylor states in the group's scorecard post on its website. "Religious organizations, for-profit businesses, and individuals have filed over 40 cases, attempting to protect their deeply held religious beliefs and exercise from the unconstitutional dictates of the federal government."

Fifteen lawsuits have been filed by for-profit businesses and their owners.

"Their religious consciences preclude them from subsidizing the use of contraceptives and/or abortifacients by participants in their health insurance plans," Baylor states. "Because the U.S. Department of Health and Human Services declined to extend the "Temporary Enforcement Safe Harbor" to such for-profit companies, it has been necessary for most of them to seek immediate relief from the federal courts.

"The good news is that most courts have afforded that relief, either a temporary restraining order or a preliminary injunction. Unfortunately, a few courts denied the requests for interim relief. The government has argued that for-profit business simply cannot exercise religion at all, thus they have no religious exercise rights that might be violated."

A larger number of cases have been filed by non-profit religious organizations, such as Christ-centered colleges, faith-based social service agencies, Roman Catholic dioceses, and pro-life organizations, ADF said.

"The government defendants have almost invariably sought dismissal, arguing that the availability of the Temporary Enforcement Safe Harbor and the announcement of a new rule making process rendered the cases premature," Baylor said. "Some courts accepted that argument, while one rejected it. Others refused to dismiss the lawsuits, but put the cases on hold until the defendant agencies issue a new rule. In some cases, we await the court's ruling. Still others were filed just recently, and the government hasn't yet responded in any way."

ADF states that in many of the cases that have been dismissed, the plaintiffs have appealed – or presumably will appeal soon.

"In the cases that have been stayed, the courts are waiting for the government to keep its promise to issue a new proposed rule by the end of March 2013," Baylor explains. "The government dubiously claims that its forthcoming proposed rule, the product of a process begun in March 2012 with HHS's Advance Notice of Proposed Rulemaking, will eliminate the Mandate's burden on the religious freedom of non-profit religious organizations."

The "safe harbor" HHS granted to some religious non-profits will begin to expire on August 1, ADF stated.

On the Web: HHS Mandate Cases: A Scorecard.