Hobby Lobby's setbacks in court at the end of the year gained significant media attention, despite the fact that for-profit businesses like the Oklahoma-based business continue to rack up court victories against the mandate. According to a tally by the Becket Fund for Religious Liberty, nine for-profit businesses -- including three in late December -- have won injunctions in courts protecting them from the mandate. Only three for-profit businesses -- Hobby Lobby among them -- have failed to obtain an injunction.
Hobby Lobby is the largest business to file suit against the mandate. Its new health care plan went into effect Jan. 1.
"The company will continue to provide health insurance to all qualified employees," said Kyle Duncan, general counsel for the Becket Fund, which is representing Hobby Lobby in court. "To remain true to their faith, it is not their intention, as a company, to pay for abortion-inducing drugs."
A Becket spokesman Wednesday (Jan. 2) said the law firm was not commenting further on Hobby Lobby's intentions. But if the company did choose not to cover abortion-inducing drugs mandated by the Department of Health and Human Services, it reportedly could face fines of up to $1.3 million a day.
Under the mandate, businesses and even some religious organizations are required to carry employee insurance that covers contraceptives, including emergency contraceptives such as Plan B and ella that can kill an embryo after fertilization and even after implantation. Pro-lifers consider that action a chemical abortion. After a federal judge in November ruled Hobby Lobby must cover the drugs, Becket unsuccessfully appealed to the Tenth Circuit Court of Appeals and to U.S. Supreme Court Justice Sonia Sotomayor, who oversees emergency appeals from the Tenth Circuit. Sotomayor did say the lawsuit could proceed in the lower court and be appealed back to the high court at the appropriate time.
"Hobby Lobby," Duncan said, "will continue their appeal before the Tenth Circuit. The Supreme Court merely decided not to get involved in the case at this time. It left open the possibility of review after their appeal is completed in the Tenth Circuit."
The Hobby Lobby suit also includes Mardel, a Christian bookstore chain. The same family -- the Greens -- owns both of them.
"These abortion-causing drugs go against our faith, and our family is now being forced to choose between following the laws of the land that we love or maintaining the religious beliefs that have made our business successful," David Green, Hobby Lobby's founder and CEO, said in September. "... We simply cannot abandon our religious beliefs to comply with this mandate."
But elsewhere in the federal court system, for-profit businesses are winning.
The Seventh Circuit Court of Appeals issued a 2-1 decision Dec. 28 handing an Illinois-based business, Korte & Luitjohan Contractors, a victory against the abortion/contraceptive mandate. The injunction currently applies only to the business, which is owned by Catholics. The majority justices said the business owners had "established a reasonable likelihood of success on their claim" that the mandate "imposes a substantial burden on their religious exercise." The burden in court, the justices wrote, "will be on the government" to defend the mandate. Voting in the majority were Reagan nominee Joel M. Flaum and George W. Bush nominee Diane S. Sykes. George H.W. Bush nominee Ilana Rovner dissented.
The American Center for Law and Justice (ACLJ) represents the Illinois business.
"Our argument is clear: the HHS mandate unlawfully compels employers such as our clients to do the following: abandon their faith to comply with the law, or follow their faith and pay significant annual penalties to the federal government," ACLJ attorney Edward White said in a statement. "This mandate violates the conscience rights of our clients, and we're now looking forward to proceeding with our legal challenge."
Elsewhere, a federal judge Dec. 20 issued an injunction protecting a Missouri business, American Pulverizer, which is owned by evangelicals. And in Michigan, a federal judge issued a temporary restraining order Dec. 30 preventing the mandate from applying to Domino's Farms, which is owned by Domino's Pizza founder Tom Monaghan, who is Catholic.
All total, there have been 43 lawsuits against the mandate. Many of them involve religious organizations such as Christian colleges and universities.
The mandate was announced by the Department of Health and Human Services in August 2011 as part of the health care law championed by President Obama. Although the Supreme Court upheld the health care law last June, the justices' ruling did not deal with the religious liberty issues surrounding the abortion/contraceptive mandate. That means the nation's highest court could yet strike down what has been for religious groups and some business owners the most controversial part of the law.
Michael Foust is associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).
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