The Corner

The Seventh Circuit Blocks the HHS Mandate for a Private Business

Late yesterday afternoon, the Seventh Circuit granted an emergency injunction against the HHS mandate — preventing its enforcement against an Illinois business and its owners. My colleagues at the ACLJ represent Korte & Luitjohan Contractors, Inc., a family-owned, full-service construction contractor. The company is located in Highland, Ill., and employs about 90 workers. 

The brief opinion is worth a read in its entirety, but two parts stand out. First, the court disagreed with the Tenth Circuit’s recent decision rejecting Hobby Lobby’s request for a similar injunction. In a key paragraph the court stated:

 

The government also argues that any burden on religious exercise is minimal and attenuated, relying on a recent decision by the Tenth Circuit in Hobby Lobby Stores, Inc. v. Sebelius, No. 12‐6294 (10th Cir. Dec. 20, 2012). Hobby Lobby, like this case, involves a claim for injunctive and declaratory relief against the mandate brought by a secular, for‐profit employer. On an interlocutory appeal from the district court’s denial of a preliminary injunction, the Tenth Circuit denied an injunction pending appeal, noting that “the particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity condemned by plaintiff[s’] religion.” Id. at 7 (quoting Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012)). With respect, we think this misunderstands the substance of the claim. The religious‐liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services. 

This is exactly right. The mandated coverage exists — regardless of the actions or activities of the individual employees — and it is the mandate that violates the religious liberty of the employer.

Second, the court distinguished Justice Sotomayor’s recent decision not to grant Hobby Lobby emergency relief, rightly noting that Justice Sotomayor applied a much different standard:

But the “demanding standard” for issuance of an extraordinary writ by the Supreme Court . . .  differs significantly from the standard applicable to a motion for a stay or injunction pending appeal in this court. As Justice Sotomayor noted, the entitlement to relief must be “‘indisputably clear.’”

As we begin the new year, we at the ACLJ are exceedingly thankful that each of our for-profit clients has now obtained an injunction against the mandate. Their most fundamental rights to religious liberty enjoy the protection of federal court, at least for now. There is much work left to be done, and a Supreme Court battle looms in 2013.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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