Last month witnessed a small but significant victory in the fight against the HHS regulations that would require virtually every employer to provide contraceptives, sterilization and abortion-inducing drugs free of charge to their employees.
A federal judge in Colorado issued an injunction in a suit brought by Hercules Industries, a company that manufactures heating and air conditioning equipment, whose 265 employees are covered by a self-insured plan.
Hercules is owned by the Newland family, Catholics whose faith teaches that the use of contraception, sterilization and abortifacients is gravely sinful.
Faced with complying with the law or violating their religiously-shaped conscience, the Newlands, represented by the Alliance Defending Freedom (formerly known as the Alliance Defense Fund), challenged the law in federal court.
Less than a week before the regulations were scheduled to take effect, District Court Judge John Kane surprised legal experts by issuing an injunction that prevents the regulations from being applied to Hercules. In his ruling, Kane wrote that “On balance, the threatened harm to Plaintiffs, impingement of their right to freely exercise their religious beliefs, and the concomitant public interest in that right strongly favor the entry of injunctive relief.”
For you non-lawyers, Kane is saying that whatever theoretical harm might arise from delaying the implementation of the HHS mandate is “strongly”—that’s his word—outweighed by both the Newland’s and the public’s interest in religious freedom.
As I said, the ruling came as a surprise to most legal experts. As Mike Norton, who represented the Newlands, put it, the conventional wisdom was that “judges would roll over and go along with the [HHS mandate],” especially after the Supreme Court upheld the Affordable Care Act back in June.
Under federal law, this kind of injunction not only requires a substantial threat of irreparable harm, but also a substantial likelihood of prevailing on the merits. Thus, this first ruling on the HHS mandate raises the very real possibility that the mandate may not pass constitutional muster.
When you recall that the plaintiff is a for-profit business and not, say, Catholic Charities or a Christian college, this is good news, indeed.
Good news, but by no means a reason for complacency or even letting up on the issue. The ruling is very narrow: It applies to one plaintiff in Colorado. Across the country there are countless similarly-situated businesses that will not benefit from this ruling. As I record these words, these businesses are struggling with some agonizing decisions: do they violate their consciences, pay stiff fines, or drop health insurance coverage for their employees altogether?
Theoretically, religious non-profits have another year to apply for an exemption. But the process requires jumping through a lot of hoops, the kind of hoops that a reasonable person might say were designed to wear mandate opponents down.
Today on his "Two-Minute Warning" video, my friend John Stonestreet talks with Jennifer Marshall of the Heritage Foundation on why the HHS mandate is such a threat to religious freedom. You won’t want to miss it. Please go to ColsonCenter.org and watch the Two Minute Warning.
And remember, while we celebrate this particular decision, we have a lot of work to do as we continue to defend our religious liberties.