By Dave Andrusko
As widely anticipated, the Supreme Court this morning agreed to hear two lawsuits challenging the HHS mandate which compels employers to provide health coverage for drugs and procedures to which they have moral or religious objections.
Plaintiffs had prevailed in one case—Hobby Lobby—and lost in a second– Conestoga Wood Specialties Corp. There are other similar cases but the justices did not announce whether they will hear them at this time.
This represents the first legal challenge to ObamaCare to reach the Supreme Court since it upheld the law’s “individual mandate” 17 months ago. Early speculation is that oral arguments in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius will be held in March with a possible ruling by late June.
Because there was a split among circuit courts and because the Obama Administration in September asked the Justices to hear the Hobby Lobby case, it was widely assumed the justices would hear at least some of the lawsuits against the mandate. (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.”)
The core arguments raised are that the mandate violates the Religious Freedom Restoration Act and the First Amendment’s free exercise of religion clause.
“My family and I are encouraged that the U.S. Supreme Court has agreed to decide our case,” said David Green, Hobby Lobby’s founder and CEO. “This legal challenge has always remained about one thing and one thing only: the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution. Business owners should not have to choose between violating their faith and violating the law.”
“This is a major step for the Greens and their family businesses in an important fight for Americans’ religious liberty,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty and lead lawyer for Hobby Lobby. “The cases will decide ‘who gets to exercise religion — it’s really that simple,’ Duncan told POLITICO. ‘The idea that the protection of religious liberty is confined to only certain pursuits … from our perspective, that’s disturbing.’”
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.
As noted yesterday, Adam Liptak (writing for the New York Times) explained 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.
The potential penalties for non-compliance with the mandates are staggering. “[L]arger for-profit corporations must comply or face fines of $100 per day per employee, which could total $475 million a year in Hobby Lobby’s case,” CNN reported today. “An alternative — dropping employee health insurance altogether — would cost $26 million in annual penalties.