By Hadley Heath
(Washington, D.C.) – The Independent Women’s Forum (IWF) has filed an Amicus Curiae brief in support of Hobby Lobby, Inc., and Conestoga Wood Specialties Corp., who are challenging the ObamaCare contraception mandate before the Supreme Court.
In contrast to the 56 other briefs filed in support of Hobby Lobby and Conestoga Wood, the IWF’s brief stresses the mandate’s consequences for women’s health and employment freedom rather than emphasizing religion.
The IWF, an organization that supports limited government, free-markets, and individual responsibility, opposes ObamaCare coverage mandates, both for individuals and for employer-sponsored plans. The IWF’s statement of interest argues that the HHS mandate works contrary to women’s interests and will restrict women’s flexibility to customize their compensation and benefits.
However, the main focus of the brief, written by University of Missouri law professor (and former clerk for Chief Justice John Roberts) Erin M. Hawley, is a technical legal issue: the Anti-Injunction Act. The Anti-Injunction Act was enacted in 1867 to ensure the prompt collection of taxes and to protect the public treasury. It enacts a pay-first litigate-later approach to challenge one’s income taxes.
The IWF argues that the Anti-Injunction Act is not jurisdictional and poses no bar to resolution of the critical constitutional questions at issue in the cases.
Hadley Heath, Director of Health Policy for the IWF, explained:
“This lawsuit has wrongfully been depicted as a conflict between religious employers and women, but IWF filed an amicus brief because we believe this mandate actually works contrary to women’s interests.
“IWF supports women’s choice to use or not use contraception and believes that American women already have access to various forms of birth control. If the government wants to do more to increase access, there are better – less restrictive – means than requiring employers to provide the coverage.”
“The HHS mandate will come with unintended consequences for women and for public health. By removing price competition from birth control markets, the mandate will drive up the cost of drugs for women who remain uninsured, and may decrease condom use among those who are insured.”
“This case is about much more than contraception. It is about the principles of liberty that animate our Constitution. It is about empowering women to choose the healthcare and salary options that best fit their needs. And it is about employers, many of them women, being able to follow their deeply held religious beliefs.
“IWF believes that all of these arguments should not be foreclosed solely because the penalties imposed by the contraception mandate are made payable to the IRS. The Government does not argue that the Anti- Injunction Act applies to this case. Accordingly, the defense is forfeited and poses no bar to resolution of the critical constitutional questions at issue here.
The IWF has been monitoring and keeping the public informed about constitutional challenges to ObamaCare since the law’s passage, and in October 2010 launched a Web site to track the more than 100 cases filed against various aspects of ObamaCare. This project can be found online at http://healthcarelawsuits.org
To read the IWF's amicus brief, click here.
By Hadley Heath
Today U.S. District Court Judge Paul Friedman threw out the Halbig v. Sebelius case that challenged subsidies flowing through the federally-established exchange(s).
The Plaintiffs argued that the text of the Affordable Care Act only authorized subsidies through exchanges that states elected to establish. These exchanges derive their authority from one section of the law (Section 1311) while federally-established exchanges (the default if a state elects not to create its own) are authorized in another section (Section 1321). The Plaintiffs also suggested that this was intentional: Congress wanted to incentivize states to create their own exchanges, and these subsidies were the carrot.
Judge Friedman disagreed. He was quoted in The Hill today:
"The plain text of the statute, the statutory structure, and the statutory purpose make clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges."
This is certainly a setback for the law's challengers, but not the end of the road. There are other lawsuits in other districts that challenge these subsidies, and lead attorney for Halbig has already promised to appeal this decision.
Read more here.
By Hadley Heath
ObamaCare has a new legal headache, and his name is Senator Ron Johnson.
Sunday the Wisconsin Senator announced that he will file a lawsuit against the Office of Personnel Management over a decision to grant Members of Congress and their staffs a special subsidy to purchase insurance through the Obamacare exchanges.
Here’s a little background:
In the summer of 2013, Senate Democrats met with President Obama to address an amendment in the Affordable Care Act (Obamacare) that required members of Congress and their staffs to access health insurance through the law's exchanges. The outcome of these backdoor meetings was a ruling from the Office of Personnel Management that gave members a choice: Keep your staff on the FEHBP or move them into the exchanges (with a generous, one-of-a-kind subsidy).
In either case, Congress is getting special treatment. And Americans, regardless of their political predilections, recoil from this kind of favoritism. When Independent Women's Voice conducted polling on this issue, 92% of respondents answered that this was unfair.
In fact, part of Sen. Johnson’s argument that he has standing (that is, that he has been harmed) is to show that this illegal rule has created an alienation between him and his constituents.
The text of the Affordable Care Act requires Congress to obtain their health insurance as other Americans do, without special treatment. The OPM rule contradicts the law, and the Administration isn’t authorized to make this change. You can read more about this new lawsuit here, and watch Sen. Johnson’s press conference about it here.
By Hadley Heath
Today the Supreme Court announced that it will hear two cases that challenge the HHS mandate that employers provide insurance coverage for all FDA-approved contraceptives.
The cases are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp v. Sebelius.
In the Hobby Lobby case, the government is now the challenger. The arts-and-crafts giant won at the 10th Circuit Court of Appeals this summer. This case is perhaps the most well-known of any of the HHS mandate cases: The Green family, who owns Hobby Lobby Stores, Inc., says that providing coverage for a handful of treatments included in the mandate (including the "morning-after" and "week-after" pills) would be a violation of their evangelical Christian religious beliefs. Their case centers largely around protections under the Religious Freedom Restoration Act (RFRA) of 1993.
The Conestoga Wood plaintiffs have taken a different road to SCOTUS, but the basic storyline is the same. The Hahn family, who practice the Mennonite faith, own a cabinet-making business. Their case lost at the 3rd Circuit Court of Appeals, and centers not just on RFRA but also First Amendment rights. If you haven't been following this case as closely, here's a short video from Alliance Defending Freedom, the watchdog group that is litigating the case:
As attorney Matt Bowman said in this clip, this case is about more than birth control or drugs that may induce abortions. These cases - both the Hobby Lobby and Conestoga cases - are about the broader questions of religious rights in the context of doing business.
For the law nerds, here's a good explanation from Lyle Dennison at SCOTUSblog:
It is already clear, of course, that individuals — whether they own businesses or not — do have religious beliefs that the government may not try to regulate. But it is not yet clear, and these cases will test the issue, whether they have a right — constitutional or based on a 1993 federal law — to rely upon those beliefs in refusing to provide a kind of health care coverage that they say violates the tenets of their faith
On the other hand, it is not clear that a business that is formed as a corporation, and engages in a strictly commercial kind of activity, can have religious beliefs and can actually base its commercial actions upon such faith principles (separate from the religious beliefs of its owners). The Court has never ruled on that issue, but that is one of the core issues it has now agreed to consider.
In the government case — that is, the one involving the arts and crafts retailer, Hobby Lobby — the answer to questions about both the individual owners of a closely held business and the business itself as a separate entity arises under the Religious Freedom Restoration Act. That law specifies that the government cannot impose a “substantial burden on a person’s exercise of religion,” unless the government can prove that the burden serves “a compelling governmental interest” and that it is also “the least restrictive means” of doing that.
There is no doubt that the individual owners are persons. But the Court must decide whether the pregnancy-related insurance coverage does, in fact, put a burden on the individual owners, or whether any burden is on the business itself, rather than its owners. That is the issue so far as individual owners’ claim under RFRA goes.
But Tuesday’s order granting review did not stop with the government case, and it did not stop with the RFRA issues. By also agreeing to review the plea by a Pennsylvania company that makes wooden cabinets (Conestoga Wood Specialties), and its Mennonite family owners, the Court expanded considerably the scope of its review. That case, in addition to the RFRA issues, also raises issues under the First Amendment’s guarantee of a right to freely exercise one’s religion.
The issue before the Court is whether the business itself is capable of “exercising” religion. If it is not, that would imperil, but perhaps not destroy altogether, its First Amendment claim. The Court might also have to decide whether, even if a profit-making firm does not exercise religion on its own, it can exercise the religious preferences of its owners — that is, by what lawyers call a “pass through” theory, with the owners’ religious views passing through to the corporation they have created.
These cases will most likely be heard in March, with the Court planning to dedicate one hour of oral argument to each. The Court will rule in summer 2014.
By Hadley Heath
Somewhere on the list of the more than 200 plaintiffs challenging ObamaCare's HHS mandate are the Gilardi brothers, owners of Freshway Foods, a produce company in Ohio.
The Catholic businessmen filed suit because the provision of insurance coverage for contraception and sterilization (required by ObamaCare) violates their religious beliefs. A lower court ruled against them, but the DC Court of Appeals reversed that ruling. Importantly, Judge Janice Rogers Brown wrote the following in response the the government's argument about women's right to abortion:
It is clear the government has failed to demonstrate how such a right — whether described as noninterference, privacy, or autonomy — can extend to the compelled subsidization of a woman’s procreative practices.
You can read more at Life News.
This is not the first case to reach a ruling at the appellate level. The Hobby Lobby won an injunction in the 10th Circuit, which the DOJ is appealing to SCOTUS. Conestoga Wood (6th Circuit), and Autocam (3rd Circuit) have also submitted Cert Petitions seeking reversals of their appellate rulings. The Gilardi case adds yet another appellate ruling to the split-circuit mix, creating even more pressure for SCOTUS to take up the issue.