Catholic business owners ask for injunction to halt HHS mandate compliance

As this blog has noted, the HHS mandate goes into effect on the 1st of August–about a week from today.  Many non-profit organizations with religious objections have been granted a one-year safe harbor.  Other organizations have grandfathered insurance plans, or don’t renew insurance contracts right away. But many small businesses will be hammered with this mandate in a week from today.  The First Amendment to the U.S. Constitution is not written only for large corporations or institutions.  It’s for you and me–individual citizens.  We have the right to freely practice our faiths.  For many of us, that means that we cannot participate in buying abortion-inducing drugs, sterilization, or contraception.  Not for ourselves, not for anybody.

Brian Fraga of National Catholic Register has written a  report of what some Catholic business owners are doing, right now. As he reports,

A motion hearing is scheduled for tomorrow, July 25, in U.S. District Court in Colorado, where a Catholic family that owns and operates a heating and air conditioning company is seeking an injunction to halt the controversial mandate of the U.S. Department of Health and Human Services.

Read the following carefully.  Your government holds that a secular business doesn’t have the freedom of religion guaranteed in the First Amendment.

The U.S. government argues in court documents that the lawsuit should be dismissed because the Newlands’ family business, Hercules Industries, is a secular entity and thus does not exercise religion in a way that is protected by the First Amendment.

“By definition, a secular employer does not engage in any ‘exercise of religion,’” government lawyers argued in their brief for Newland v. Sebelius, which also presents the HHS mandate as a means to improve the health of women and children, guaranteeing “preventive care” for women so that they are on an equal playing field with men in the workforce.

Matt Bowman is legal counsel for Alliance Defending Freedom (which used to be the Alliance Defense Fund), which is representing the business owners.

“We think, under the law, the federal government is not allowed to force families to abandon their faith just to earn a living, that religious freedom in the First Amendment, as Congress has protected it, is not just for Sundays and soup kitchens. It’s for you to live your daily life, including in business, according to your faith,” Bowman told the Register.

In Newland v. Sebelius, Alliance Defending Freedom is asking the court to block the HHS mandate and to issue a ruling by Aug. 1. The Newlands’ business does not qualify for an extension granted to some religiously affiliated employers, who will not be required to abide by the mandate until August 2013. The family business also does not have the option to keep its current health-care plan, which does not cover contraception.

For this business, the hammer comes down in November.

As things now stand, Hercules Industries would be legally required by the HHS mandate to start offering all Food and Drug Administration-approved forms of birth control, including sterilization and abortifacients, in November, when its next health-insurance plan year begins.

A U.S. district court judge will hear the motions tomorrow.  Stay tuned.

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7 Responses to Catholic business owners ask for injunction to halt HHS mandate compliance

  1. dougindeap says:

    Notwithstanding the bishops’ arm waving about religious liberty and Bowman’s assertion in the article, the health care law does not “force” employers to act contrary to their consciences. Contrary to bishops’ assertions and the widespread belief of those who trustingly accept their claims, the law does no such thing.

    Under the law, employers have the option of not providing any such plans and instead simply paying assessments (which, by the way, would total much less than the cost of health plans) to the government. Unless one supposes that the employers’ religion forbids payments of money to government, the law does not compel them to act contrary to their beliefs.

    Some nonetheless have continued complaining that by paying assessments, they would indirectly be paying for things they oppose, seemingly missed that that is not being forced to act contrary to one’s beliefs, but rather is a gripe common to many taxpayers–who don’t much like paying taxes and who object to this or that action the government may take with the benefit of “their” tax dollars.

    In any event, those complaining made enough of a stink that the government relented and announced that religious employers would be free to provide health plans with provisions to their liking and not be required to pay the assessments otherwise required.

    Nonetheless, some continue to complain, fretting that somehow services they dislike will get paid for and somehow they will be complicit in that. They evidently believe that when they spend a dollar and it thus becomes the property of others, they nonetheless should have some say in how others later spend that dollar.

    • Madisonian says:

      Dougindeep: You are badly misinformed. It is simply not true that the plaintiffs in this lawsuit face no real injury, or that at worst they would merely have to pay “assessments to the Government” that “would total much less than the cost of health care plans.” The Government has not made that argument in its briefs in the case, because it’s not true. Here, instead, are the facts: The plaintiffs in this case (Hercules Industries and its owners, the Newland family) have 265 full-time employees. Failing to knuckle under to the coercive HHS mandate in this case would make them liable for (i) penalties through the Treasury Department of approximately $100 per employee per day (see Section 1563(e)-(f) of the Obamacare law): that’s $26,500 per day, for so long as they continue omitting coverage of the items to which they conscientiously object; AND (ii) penalties of $2,000 per year per employee if they elect to omit health coverage altogether (that adds up to $530,000 per year); AND (iii) liability to expensive private lawsuits in federal court brought by the EEOC, private plaintiffs, or both; and those suits can specifically force the plaintiffs to violate their beliefs by providing the objectionable coverage.

      • dougindeap says:

        I am familiar with both of the provisions you mention. They work much differently than you suppose. The former applies only when a health insurance plan is offered and it fails to meet statutory requirements. That provision simply does not apply when an employer chooses not to provide health insurance. It bears noting, too, that the provision contains many exceptions and other ways to avoid or substantially reduce the penalty.

        The latter is the provision pertinent here. It provides that an employer choosing not to provide such health insurance pays an assessment of only $2,000 per employee per year–far less than the typical annual cost of health insurance. Moreover, employers don’t pay any assessment for the first 50 employees–a $100,000 saving. Employers with fewer than 50 employees, thus, would owe nothing.

        It is for this reason that, according to two recent studies, 10-30% of employers are considering the option of not providing insurance. They think that it may be economically advantageous. (Perhaps the assessments have been set too low.)

  2. Gwen says:

    Doug, I would gladly enter into a civil discussion with you about this issue. However, when each of your responses starts off with an insult to the Catholic bishops, and continues with an insult to those who listen to the bishops, I stop reading right there. My patience with your insults and name-calling is wearing thin. This may be accepted on other blogs, but not here.

    You may try again. Please be civil.

  3. dougindeap says:

    I’m happy to have a civil discussion, but unsure just what in my previous comment provoked your reaction. I reread my comment looking for “Insults and name-calling” and found none. Some may think “arm waving” is overly colorful rhetoric, but it’s hardly insulting. Substitute “contentions” if you prefer. I do explain that the facts are “contrary to the bishops’ assertions,” but that is merely a straightforward statement disputing their assertions, hardly an insult. I’m not sure what else in the comment you might consider uncivil. In any event, we can dispense with much of the detail. The main point is that the ACA, as a matter of fact, does not force any employer to act contrary to his or her conscience since it does not force any employer to provide any health insurance at all, let alone insurance with coverage the employer disapproves. I understand that some who choose not to provide health insurance may dislike paying assessments to the government (the amounts of which would be less than the cost of the health plans), but that is a garden-variety political, policy, or personal gripe and not a crisis of conscience.

  4. Gwen says:

    Bottom line, Doug: attack the argument, not the person (or people) making the argument. Call the bishops liars, accuse them of demagoguery, and imply that those who follow them are either equally dishonest or stupid, and you’ll make people angry rather than convincing them of your point.

    The HHS mandate is wrong for a many reasons. It certainly does force employers into providing products, including abortion-inducing drugs, contraception, and sterilization, to employees in their health coverage. The suggestion that conscientious people should simply drop health insurance for their employees is simplistic and unrealistic. In most industries and occupations, employers provide health insurance benefits to attract top-notch employees. Dropping health insurance is a quick route to being “out of business” for employers. It might seem cheaper, but it would be a stupid business decision, and would quickly lead to loss of the best employees, loss of business, and eventual shutdown. Additionally, to compete for the best employees, those companies that do not provide health insurance benefits generally pay higher wages. Thus would the suggested “savings” from canceling health insurance evaporate.

    Your suggestion that an employer drop health insurance is probably also immoral. Catholic moral teaching, for example, requires that employers give fair wages to employees (this is one of the sins that cries to heaven, fyi). In today’s environment, fair wages in most industries includes health insurance. For an employer that hired an employee with a contract or agreement to provide health insurance to subsequently drop the insurance would seem to be immoral. Even a secular thinker would see it as unfair to drop promised or contracted health insurance.

    Finally, moral and ethical employers, of all faiths or none, think it is important to take care of their employees. For many employers, that means providing health insurance. For an employer who is currently providing health insurance, it certainly means continuing to do so. To abruptly cease providing health insurance would be unfair to employees.

    In the example of the blog posting above, this family (the business owners) is being given some bleak choices: they must violate their faith by providing immoral services, or they must pay crippling fines, or they must close. You would add, they could drop health insurance for their employees and pay the fines instead of paying for health insurance. Very quickly, their best employees would find work elsewhere (someplace with health insurance) and the business would probably go under.

    Further, buried in the HHS mandate is an unjustly narrow definition of what is a religious organization. This definition, that an organization must serve primarily co-religionists, must employ primarily co-religionists, and must have as its mission the inculcation of the faith, is narrower than any previous federal definition. It makes religion viable, in accordance with these federal regulations, only within the walls of a church building itself, and not in the public square. This is a false redefinition of religion. For this reason alone, the HHS mandate needs to be reversed and revoked.

    • dougindeap says:

      I appreciate your valuing civility. I share that value–and have sometimes offered the same sort of admonition you have given me. While a careful reading of my comment confirms that my statements are directed at arguments, and not those making the arguments, it may well be that those making the arguments may nonetheless feel wounded by rhetoric directed at their arguments, if they think it reflects poorly on them and particularly if the rhetoric is biting. The sensibilities of people vary in this regard. Some take offense simply by being told they are wrong about something.

      You argue that the law forces employers to provide insurance with coverage they find objectionable because, even though the law allows employers not to provide any health insurance, you think that option is unrealistic. You argue that it would put an employer at a competitive disadvantage and lead to eventual shutdown.

      I think not. First, it is critical to observe that the law itself does not force the employer to provide any health insurance. That is a fact–and an important one.

      Second, if employers want to contend that it is market pressures that necessitate that they provide health insurance, they should endeavor to make that case. I have not yet observed that. Moreover, to make that case in the context of claiming that a law prescribing certain types of health insurance effectively “forces” them to act contrary to their consciences, they would need to show not merely that they would suffer some competitive disadvantage by choosing not to provide insurance, but rather that they would effectively be put out of business by such a choice, thus rendering it no real choice at all (other than a choice to go out of business, which some have argued is choice enough).

      Third, that would be a hard case to make, I think. Roughly 30% of employers currently do not provide health insurance, and they manage to cope. While the percentage of large employers not providing such insurance is much smaller, nonetheless some manage just fine that way. As you note, employers who choose not to provide insurance may remain competitive by increasing wages to largely offset the loss of insurance benefits. Moreover, because the health law promises to give individuals more realistic opportunities to obtain health insurance from sources other than their employers, many employers are considering not offering such insurance–for reasons entirely unrelated to religion. As I noted in response to Madisonian, the assessments in the health law may be so low that, coupled with the greater availability of insurance to all individuals, the option of not providing health insurance may be attractive to employers–again for reasons entirely unrelated to religion. I don’t see any basis in all that for claiming that employers are “forced” to provide insurance, let alone insurance that violates their consciences.

      The wider availability of health insurance and the ability to increase wages to offset the loss of existing health insurance benefits largely resolves the moral issue you suggest may occur to some employers.

      Finally, the definition of religious organization you mention serves merely to establish the scope of the exemption the ACA affords. It has nothing to do with establishing the scope of the freedom each individual enjoys under the First Amendment to exercise his or her religion–publicly and privately. All employers have the choices discussed above, thus assuring they are not “forced” to act contrary to their consciences. A religious organization that also is an employer has it even easier; it need not even concern itself with making any such choices, since it is entirely exempt from the law’s requirements.

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