Judge: HHS Mandate No Burden on Religious Freedom, Decision Narrows Definition of Religious Employer

Will court action suffice to turn back  the Obama administration's assault against religious freedom in America? Matthew Archbold filed this report on the recent defeat for religious liberty with the Cardinal Newman Society on-line newsletter October 1:


A federal district court in Missouri dismissed in its entirety a lawsuit against the Department of Health and Human Services’ HHS contraceptive mandate brought by a Catholic business owner, saying the mandate does not constitute a substantial burden on religious freedom.

U.S. District Judge Carol E. Jackson, a George H.W. Bush appointee, ruled against Frank O’Brien and O’Brien Industries and in favor of the HHS’s motion to dismiss the lawsuit.
O’Brien is a Catholic who, according to court documents, “tries to manage and operate OIH in a manner consistent with his religion” and sought relief from the court, claiming that regulations promulgated under the Patient Protection and Affordable Care Act violate his constitutional First Amendment rights. The federal government, on the other hand, requested that the judge dismiss the lawsuit.

The judge stated in her decision for the federal government that O’Brien Holdings didn’t qualify for any of the exemptions previously laid out by the Administration or the temporary “safe harbor” clause as it doesn’t quality as a “religious employer.” It will therefore be mandated to select a new employee health plan before January 1, 2013.

Court papers state that O’Brien Holdings faces a choice between “complying with [the ACA’s] requirements in violation of their religious beliefs, or paying ruinous fines that would have a crippling impact on their ability to survive economically.”

However, Judge Jackson wrote that the mandate does not constitute a substantial burden on religious exercise:

… the challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.

Robert Vischer of the University of St. Thomas Law School in Minnesota wrote about this decision at the Mirror of Justice blog, saying that, “if this court is correct in its analysis, then HHS could rewrite the regulations, remove any exemption for religious employers and add abortion to the list of covered services.  The Catholic Church could be forced to pay for its employees’ abortions without creating a substantial burden on religious exercise.”

The American Civil Liberties Union submitted an amicus curiae brief in support of defendants’ motion to dismiss.