Hobby Lobby shifts date of health plan in attempt to avoid potential penalties from HHS Mandate

By Dave Andrusko

Hobby Lobby Birth ControlFaced with the prospect of business-killing $1.3 million per day in penalties, Hobby Lobby is attempting to find a way around the time limit for  compliance with the Obama mandate while it continues its battle in court.

Peter Dobelbower, general counsel for the privately held retail chain, said in a statement issued Thursday that the company has moved back the annual start date of its health care plan by several months. That, however, does not mean the company is giving up its battle. “Hobby Lobby will continue to vigorously defend its religious liberty and oppose the mandate and any penalties,” Dobelbower wrote.  

The HHS mandate are regulations adopted by the Department of Health and Human Services under a provision of ObamaCare that force employers to purchase health insurance for their employees that includes coverage for items and procedures, such as contraceptives, that they have moral or religious objections to. There are over 40 legal challenges to the mandate.

The company had suffered a number of legal setbacks, including most recently when Supreme Court Justice Sonia Sotomayor turned down the company’s request for an emergency appeal to temporarily stop enforcement of the Health and Human Services mandate.

“While the applicants allege they will face irreparable harm if they are forced to choose between complying with the contraception-coverage requirement and paying significant fines,” Sotomayor wrote, “they cannot show that an injunction is necessary or appropriate to aid our jurisdiction.”

In English, that means Sotomayor concluded the company had failed to satisfy the demanding legal standard for blocking the requirement on an emergency basis.

In November Judge Joe Heaton of the U.S. District for the Western District of Oklahoma denied the request for a preliminary injunction.

“Heaton ruled that while individual members of the family that owns and operates Hobby Lobby have religious rights, the companies the family owns are secular, for-profit enterprises that do not possess the same rights,” Reuters reported.

In late December the U.S. Court of Appeals in Denver (the 10th Circuit) ruled against Hobby Lobby which has grown from one 300-square-foot retail space in 1972 into more than 500 stores in 41 states.

There have been some encouraging victories in the fight against the HHS mandate.

Last summer, two lower courts had dismissed a lawsuit filed by Wheaton College and Belmont Abbey College on the grounds that the challenges were premature.  However, on December 18, a federal appeals court in Washington, D.C. reinstated those cases, and ordered the Obama Administration to report back every 60 days—starting in mid-February—until the Administration makes good on its promise to issue a new rule that protects the Colleges’ religious freedom.

Two weeks prior to that, on December 4, Federal Judge Brian Cogan ruled that a lawsuit from the Archdiocese of New York against the Obama administration’s HHS mandate may proceed. Judge Cogan also rejected the “premature” argument voiced by the Obama administration.

Facing a backlash of opposition to the HHS mandate after its announcement in February, the Obama administration announced a “safe harbor”–a delay in enforcement–that would prevent the mandate from applying to certain religious employers until August 2013 while the government supposedly “considered” some future “accommodation.”

But Judge Cogan wrote, “The First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action.”

“There is no, ‘Trust us, changes are coming’ clause in the Constitution,” said the judge. “To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction.”

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