The war is not over, but victories are being won on the battlefield for religious freedom. This week marked another victory in those battles. This is the second victory in the last two weeks for those who cherish their religious freedom.
Insight for Living Ministries
This past week, United States Magistrate Judge Don Bush issued a preliminary injunction on behalf of Insight for Living Ministries in the U.S. District Court for the Eastern District of Texas. This injunction provides IFLM relief from the Contraception Mandate of the Affordable Care Act, better known as ObamaCare.
IFLM is the multi-media bible-teaching ministry of Chuck Swindoll. Pastor Swindoll has been airing bible-teaching messages on the radio since 1979. The ministry objects to providing drugs and devices (abortifacients) to employees that would cause the termination of a human life after conception. The Affordable Care Act requires all employers of over 50 full time employees to provide insurance coverage that includes these offensive drugs and devices. Since providing these would violate their sincerely held religious beliefs, the ministry felt they had no other recourse except to challenge the law in court.
I was privileged to be among those in the courtroom for the hearing of Insight for Living Ministries v. Burwell when arguments were made before Judge Bush. The government conceded that the ministry was sincere in their beliefs and no arguments were necessary by the plaintiff on this point of law. The arguments heard centered principally on the government’s “compelling interest” and the “burden” imposed by the law’s newest “accommodation” for those who object to its provisions.
IFLM was represented by Liberty Institute and argued forcibly that the law imposed a substantial burden on the ministry that would make them complicit in any subsequent use of abortifacients that terminate human life. Furthermore, the law would impose fines of $100/day/employee for failure to comply – an annual fine of over 2.5 million dollars, which threatened the future of the ministry. The newest “accommodation” fails to remedy this moral complicity as it still necessitates the cooperation of the ministry in the process of providing abortifacients to employees.
Judge Bush was clearly unimpressed with the government’s “compelling interest” to uphold the law since literally millions of other Americans have been exempted from the onerous provisions already. All churches, many unions, and small businesses are already exempt and all those receiving healthcare through the government-run Medicaid system are not provided the same abortifacient coverage. This amounts to nearly 90 million Americans already exempt.
“We are very encouraged by today’s outcome,” said Matthew Kacsmaryk, Liberty Institute’s Deputy General Counsel. “This is an important victory for faith-based ministries that seek to provide life-affirming healthcare insurance for all their employees.” Mr. Kacsmaryk explained, “IFLM believes it is a religious imperative to provide healthcare insurance and defend unborn human life. Under the Religious Freedom Restoration Act, the federal government cannot force IFLM to choose between these two religious beliefs.”
Ave Maria School of Law
In a very similar lawsuit decided just two weeks earlier, Ave Maria School of Law v. Burwell, also won a preliminary injunction in the U.S. District Court for the Middle District of Florida. Attorneys for Alliance Defending Freedom argued successfully on behalf of Ave Maria School of Law, a Catholic-based private institution.
Ave Maria School of Law was founded in 1999 to provide a legal education that is publicly faithful to the authoritative teachings of the Catholic Church. The school’s sincere religious beliefs forbid it from facilitating the provision of abortion-inducing drugs, contraception, or sterilization through health insurance coverage it offers to its employees.
“The question is whether the government can pick and choose what faith is, who the faithful are, and when and where they can exercise that faith,” added Senior Counsel Kevin Theriot. “The cost of religious freedom for Americans and organizations across the country that face this mandate is severe. The potential for massive fines and lawsuits could shut down religious educational institutions as well as private employers with similar religious convictions.”
Setback in D.C. Circuit Court
However, there was a setback in the District of Columbia by a three-judge panel of justices all appointed by Democratic presidents, two by President Obama. In the case of Priests for Life v. Burwell, the U.S. Circuit Court of Appeals for the District of Columbia ruled the Obama administration’s opt-out system, the revised “accommodation”, was sufficient.
This is the first appellate ruling on the religious objections to the contraceptive mandate since the Supreme Court’s Hobby Lobby decision and the first loss since then for supporters of religious freedom.
Judge Cornelia Pillard wrote, “The accommodation requires as little as it can from the objectors while still serving the government’s compelling interests.” Judge Pillard was appointed to the court only after Senate Majority Leader Harry Reid abolished the filibuster rule which had been used since 1837 by both parties to block unfavorable appointees to the court. This paved the way for appointment of these judges to the D.C. Circuit Court of Appeals.
“The court is wrong, and we will not obey the mandate,” said Father Frank Pavone, national director of Priests for Life. He said the Staten Island, N.Y., organization was planning an appeal to the Supreme Court. The University of Notre Dame, which lost its challenge at the Seventh Circuit in Chicago, has already asked the Supreme Court to hear its appeal and is waiting on a decision.
The Alliance Defending Freedom website keeps a running tally of the number of lawsuits challenging the ACA’s Contraception Mandate. With these two victories, and one loss, the scorecard looks like this:
For-profit lawsuits: 45 won – 2 lost
Non-profit lawsuits: 37 won – 4 lost
The most important pending case on this issue is Little Sisters of the Poor v. Burwell. Oral arguments are to be heard in the U.S. Tenth Circuit Court of Appeals in Denver, Colorado on December 8, 2014. This is the key test case for the non-profit lawsuits, much like Hobby Lobby was for the for-profit lawsuits.
The war is not over, but battles are being won. All those who value religious freedom should be in prayer for this next important case.