With over 100 plaintiffs, lawyers for mandate objectors are hopeful

President Obama and HHS Secretary Sebelius at the press conference on Preventive Health Services and Religious Institutions  Credit C SPAN CNA US Catholic News 2 10 12 President Obama and HHS Secretary Sebelius at the Feb. 2012 press conference on Preventive Health Services and Religious Institutions. | C-SPAN.

As the number of plaintiffs suing over the controversial HHS mandate reaches 100, a leading religious freedom legal group is hopeful about the outcome of the cases.

Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, explained that "nothing the government has done in the past months changes the fact that the mandate still violates federal law and the Constitution by forcing religious organizations to pay fines for the privilege of practicing their faith."

Duncan told CNA on Oct. 9 that the Becket Fund is still confident as it moves forward with lawsuits against the controversial federal mandate that requires employers to offer health insurance coverage of contraception, sterilization and early abortion drugs, regardless of their religious beliefs.

In issuing the mandate, the Obama administration failed to offer a religious exemption to any group that serves or employs members of other faiths, as well as for-profit companies.

The administration did create a one-year "safe harbor" delaying the mandate from being implemented against objecting religious groups and has promised a future "accommodation" for religious freedom but has not yet given formal details about it.

The mandate has attracted legal action by more than 100 individuals and organizations, ranging from the first suit filed by Belmont Abbey College in Nov. 2011 – before many Americans were even aware of the mandate – to the most recent lawsuit filed by two Baptist universities on Oct. 9. 

The plaintiffs include Catholics, Protestants, private individuals, religious organizations and for-profit businesses.

Among the diverse groups bringing lawsuits against the mandate are Eternal World Television Network, Hobby Lobby, the University of Notre Dame and several manufacturing companies.

Seven states have also sued over the mandate, along with numerous dioceses and Catholic Charities affiliates throughout the U.S.

Most of these cases are still waiting to receive a ruling. Bible publisher Tyndale House Publishers will appear at a hearing on Oct. 16, and Hobby Lobby has a hearing scheduled for the end of October.

One Colorado-based company, Hercules Industries, was successful in securing a temporary injunction against the mandate, while Missouri-based O'Brien Industrial Holdings lost its case in a federal district court but is appealing the decision. 

In addition, a few cases have been dismissed as being premature, including those filed by Belmont Abbey College and Wheaton College. Courts determined that these plaintiffs were not facing imminent harm because the promised accommodation has not yet been finalized.

The colleges are appealing this decision, arguing that they are indeed suffering immediate injury under the mandate. They explained that their ability to hire new employees is significantly hindered if they cannot guarantee that they will be able to provide health insurance. In addition, they observed that the "safe harbor" does not protect them from private lawsuits by employees for failing to comply with the mandate.

A D.C. circuit court will hear an appeal that combines the cases of both colleges sometime after mid-November.

Emily Hardman, communications director for the Becket Fund, explained Oct. 9 that predicting a timeline for the rulings in the remaining cases is difficult because "each court can set their own times."

Even tougher would be guessing a timeline for a potential Supreme Court ruling, because that would require the cases to work themselves through the judicial system and be accepted for review by the nation's highest court.

However, Hardman observed that many insurance plans renew on Jan. 1, 2013, so the plaintiffs that are not protected by the "safe harbor" are likely to at least receive a ruling on whether they will be granted a temporary injunction by the end of the year.

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She also pointed out that the results of the presidential election could offer a wave of relief to all of the plaintiffs at once. Republican candidate Mitt Romney has pledged to repeal the mandate, and his election in November would translate into a victory for everyone who is suing over the mandate.

But even if this happens, there is still need to be cautious, Hardman acknowledged. Some states have similar mandates that threaten religious freedom, although they are generally not as severe.

"The Becket Fund will continue fighting," she stressed.

Hardman said there is a need to engage the "public discussion" about the importance of religious freedom.

She noted that rhetoric about women's health and a "war on women" has become prominent in recent months, and this language could be leading people to believe that women have an inviolable right to free contraception at the expense of their employers.

It is important to counter these claims with facts, Hardman said. She explained that contraception is already widely available at low cost, so there is no crisis in access.

When people "look at what the mandate is actually doing," she said, they realize that returning to the system that was in place before the mandate took effect on Aug. 1 would not mean oppressing women, but leaving them free to purchase contraception as they see fit.
Educating the public about the nature of religious freedom is critical, agreed Duncan.

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"Even if this mandate is scrapped, the bad principle behind the mandate must not be forgotten," he said, warning that it could "justify forcing religious people, organizations, and businesses to provide not only drugs their faith forbids, but also services such as abortion and assisted-suicide."

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