Mo. business appealing ruling against its HHS mandate lawsuit

St. Louis, Mo., Oct 2, 2012 / 01:18 am

A federal district court in Missouri has dismissed a Catholic businessman's lawsuit that contends that the HHS mandate violates his religious freedom, but his lawyers say the decision is so flawed that it takes a position more extreme than the Obama administration and will not stand on appeal.

"Obviously we're disappointed in this judge's decision, but this is just the end of round one. No one expected that this case would end at the district court level, no matter who won," Francis J. Manion, senior counsel with the American Center for Law and Justice, told CNA Oct. 1.

Manion said the businessman's lawyers are "very optimistic" about success on appeal because "the basis of the court's ruling is so remarkably flawed from a legal and logical statement that we don't think the Court of Appeals will uphold it."

"We've already filed our notice of appeal today," he said.

The lawsuit was filed March 15 on behalf of Frank R. O'Brien and his 87-employee company O'Brien Industrial Holdings in St. Louis, Mo. He said his right to religious freedom is threatened by a federal Department of Health and Human Services mandate that requires most employers of 50 employees or more to offer health insurance plans that offer no co-pay coverage for sterilization and contraception, including drugs that can cause abortions.

District Judge Carol E. Jackson's Sept. 28 decision rejected the idea that requiring "indirect financial support of a practice" constitutes "a substantial burden on a plaintiff's religious exercise."

The court said the Obama administration's rules "do not demand that plaintiffs alter their behavior in a way that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs."

The plaintiffs are "free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives," the judge said.

The decision said the mandate "might" require the plaintiffs to subsidize activities they find objectionable "after a series of independent decisions" by health care providers and plan beneficiaries.

Manion rejected the court's reasoning.

"The fact that the court held that being forced by the government to pay for something that violates your deep religious beliefs is not a burden on religious liberty is an extraordinary finding," he said.

"It's so extraordinary, in fact, that it's a position the government itself doesn't take," he added.

Manion noted that the HHS mandate itself grants a religious employer exemption. The government's recognition that the mandate infringes upon religious liberty is one reason such an exemption was created.

"That's why the president and (Department of Health and Human Services Secretary Kathleen) Sebelius have been talking for months about their efforts to 'balance' religious liberty with the right of access to contraception, as they see it," Manion said.

"The court's position is something that the government itself has probably wished the court had not done," he asserted. "To win a case on such a flawed basis is not a good thing for a lawyer, even if you're the government's lawyer. I think they're probably regretting that that's the basis of this decision here."

The Becket Fund, a religious liberty legal group, says that over 30 federal lawsuits representing over 80 individual and institutional plaintiffs are presently challenging the HHS mandate.