Supreme Court to consider soon whether to review HHS mandate, Obama Administration has had “a losing record in the lower courts”


By Dave Andrusko

Hobby Lobby’s David and Barbara Green

Hobby Lobby’s David and Barbara Green

As National Right to Life News Today reported last month, there appears to be a strong likelihood the United States Supreme Court will take up the issue of the HHS mandate which compels employers to provide health coverage for drugs and procedures to which they have moral or religious objections. The justices will make that decision in private later this month.

The most high profile case is 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.

An article written by Sam Baker for Monday’s National Journal makes a key point. It’s not just that “Three of five federal Appeals Courts that considered the matter have ruled at least partially against the mandate,” it’s that where the Obama administration has prevailed it’s been on questions of legal standing, not the legal merits.

This leads Baker to argue that a likely Supreme Court intervention “is bad news for the administration’s signature policy achievement.”

Baker does an excellent job spooling out the complexities in understandable language. He leans on the 10th circuit majority opinion written by Judge Timothy Tymkovich.

Citing a previous U.S. Supreme Court, the majority concluded, according to Baker, “that corporations (and not just the people who own them) can exercise First Amendment rights.”

What follows is a lengthy but helpful quote from Baker.

“Therefore, Tymkovich wrote, a corporation can sue over government mandates that offend the religious beliefs of its owner. He said the mandate was a ‘substantial burden’ on the company’s religious beliefs; that the government had not demonstrated a compelling interest in restricting its religious freedom; and that if the government had such an interest, it could find a less intrusive way to follow through. Those three criteria determine whether First Amendment infringements are legal,” and the Obama administration hasn’t won on those grounds even once. “Its victories have all been on questions of legal standing. …

”But when an Appeals Court has considered the mandate’s actual legal merits, either from a company or its owners, it has blocked the mandate.”

Baker concludes

“If the Supreme Court combines the cases to reach a broad ruling, and especially if it opens the door to new legal protections for corporations, the White House could find itself ruing the defeat of a crucial policy next summer, rather than celebrating the two-year anniversary of the Court’s landmark decision upholding the Affordable Care Act.”

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