Insights of the attorney who won an Appeals Court injunction against HHS

Kathryn Jean Lopez of National Review Online interviewed Frank Manion, lead attorney for the American Center for Law and Justice, representing O’Brien Industrial Holdings.  ACLJ just won an injunction from the Appeals Court, preventing the HHS from enforcing its mandate on O’Brien Holdings.  

When asked how important was the injunction, Manion replied,

It’s highly important because it’s the first time a Court of Appeals has weighed in to any extent on an HHS-mandate case. In order to grant our injunction motion, the court had to be convinced that O’Brien’s claim involves substantial issues and that he has a good chance of succeeding on the appeal. The fact that it’s temporary isn’t that significant. All injunctions pending appeal are, by definition, temporary.

Lopez asked why it is the business of Mr. O’Brien if his employees use the abortion-inducing drug or contraception directed by the HHS mandate.  

As Frank would be the first to admit — it’s not. As he put it to me, he doesn’t have any interest in knowing what his employees do in their bedrooms, but when they ask him to pay for it, they make it his business. They are free to make their own “lifestyle choices.” O’Brien should be free to choose not to subsidize those choices.

The Obama Department of Justice has argued in this case, and others, that people lose their religious liberty when they enter secular business.  Manion’s reply: 

No. There’s no solid legal or commonsense authority for that position at all. It’s true that a business owner’s religious liberty is not absolute. But then neither is anybody else’s. We all accept that our right to free exercise is circumscribed to a greater or lesser extent by compelling government or societal interests — the common good — whether we’re in business or not. But that hardly means free exercise doesn’t exist at all. The DOJ likes to cite the U.S. v. Lee case in which an Amish business owner sought to be exempt from Social Security withholding. While it’s correct that the Supreme Court talked about people in the commercial sphere having to accept certain limitations on their religious liberty, the Court did not say that they have no religious freedom. Just as the Court has held that speech does not lose its constitutional protection simply because it appears in a commercial context, (though it enjoys less protection than non-commercial speech), there is no basis for holding that religious exercise in the commercial sphere is without constitutional protection.

When asked, why is the case important, Manion answered, 

Because the HHS mandate is tyrannical (to use a good Founders’ word). It does the very thing the Founders warned against when they talked about the “celestial fire of conscience” and “compelling a man to pay for opinions he abhors.” Crafted by unelected bureaucrats, in cahoots with the professional, neo-eugenicist crowd at the Institute of Medicine, it is coercion of religious objectors on a scale hitherto unknown in this country. And for what — to secure the sacred right of all Americans to force their boss to buy them their birth-control pills? Really? Nobody spilled his blood on D-Day for that.


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