By Dave Andrusko
A brief update of a story National Right to Life News Today ran last week—“Supreme Court to consider soon whether to review HHS mandate, Obama Administration has had ‘a losing record in the lower courts.’”
We are now on the eve of the “soon.” On Tuesday the Justices will review four challenges to the HHS mandate which compels employers to provide health coverage for drugs and procedures to which they have moral or religious objections.
In our November 19 post, we focused on Hobby Lobby, a chain of more than 500 arts and crafts stores, which has won twice in court.
In September the Obama administration asked the Supreme Court to take up the case. If the justices do, it would be the second time the High Court addresses some aspect of ObamaCare. (The HHS mandate are regulations adopted by the Department of Health and Human Services under a provision of ObamaCare, formally known as the “Affordable Care Act.”)
In October lawyers for Hobby Lobby also asked the Supreme Court to decide whether David and Barbara Green will be required to provide and pay for the coverage they object to on religious grounds. And because both parties have asked the High Court to intervene, and because there are conflicting circuit court decisions, it is likely the justices will step in.
Back in July, U.S. District Judge Joe Heaton granted the company a preliminary injunction against the HHS mandate. Prior to that the full 10th U.S. Circuit Court of Appeals also ruled in favor of Hobby Lobby, which employs more than 13,000 full-time workers.
But, as the Constitution Center and the New York Times both pointed out, there are three other challenges from which the Justices could choose: Autocam Corp. v. Sebelius; Conestoga Wood Specialties Corp. v. Sebelius; and Liberty University v. Lew.
The core argument raised by all of them is that the mandate violates the First Amendment’s free exercise of religion clause.
Writing for the New York Times, Adam Liptak explains how the 10th Circuit Court of Appeals applied “the First Amendment logic of [the 2010 case of] Citizens United” in ruling for Hobby Lobby.
“’We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,’ Judge Timothy M. Tymkovich wrote for the majority.
“A dissenting member of the court, Chief Judge Mary Beck Briscoe, wrote that the majority’s approach was ‘nothing short of a radical revision of First Amendment law.’
“But Judge Harris L Hartz, in a concurrence, said the case was in some ways easier than Citizens United. ‘A corporation exercising religious beliefs is not corrupting anyone,’ he wrote.”