By Dave Andrusko
Next week, Tuesday to be specific, the Supreme Court will hear oral arguments in what may well be the most watched cases of this term: the hugely controversial HHS mandate which compels employers to provide health coverage for drugs and procedures to which they have moral or religious objections.
This represents the first legal challenge to ObamaCare to reach the Supreme Court since it upheld the law’s “individual mandate” 21 months ago.
In the lower courts one of the two plaintiffs prevailed — Hobby Lobby Stores—while the other lost–-Conestoga Wood Specialties Corp. Both are family owned corporations. Hobby Lobby is a chain of arts-and-crafts stores while Conestoga Wood Specialties is a Mennonite-owned cabinet maker.
As Richard Wolf of USA Today wrote this morning, the mandate has “been the subject of more than 100 lawsuits across the country, including 78 that are still pending.”
The core arguments raised by the plaintiffs are that the mandate violates the 1993 Religious Freedom Restoration Act and the First Amendment’s free exercise of religion clause.
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When the Supreme Court agreed to hear the case, David Green, Hobby Lobby’s founder and CEO, said “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.”
Kyle Duncan, general counsel of the Becket Fund for Religious Liberty and lead lawyer for Hobby Lobby, said at the time, “This is a major step for the Greens and their family businesses in an important fight for Americans’ religious liberty.” In an interview with POLITICO, Duncan said, “The cases will decide ‘who gets to exercise religion — it’s really that simple. The idea that the protection of religious liberty is confined to only certain pursuits … from our perspective, that’s disturbing.’”
The financial penalties for non-compliance are staggering, particularly for Hobby Lobby which employees 13,000 workers. The fine is $100 per day per employee–$475 million for Hobby Lobby.
Last June the 10th Circuit Court of Appeals sided with Hobby Lobby in a 5-3 ruling.
In July the 3rd U.S. Court of Appeals rejected Conestoga Wood Specialties’ request for an exemption from the mandate which are regulations adopted by the Department of Health and Human Services under a provision of ObamaCare, formally known as the “Affordable Care Act.”