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The Government’s Argument is Atrocious!

On Friday, a federal judge in Colorado granted a preliminary injunction barring the HHS mandate from taking effect against a small, family-run business that holds strong beliefs that abortion-inducing drugs, contraceptives, and sterilization violate their religious faith.

The Newland family owns and operates Hercules Industries, a private, for-profit HVAC equipment manufacturer.  Their 265 full-time employees have access to company-provided health insurance through a self-insured plan which does not currently cover abortion-inducing drugs, sterilization, or contraceptives.

If not for the judge’s injunction, the Newland family would have been forced to cover all of these services, violating their Catholic faith, or terminate all health coverage for their employees and pay the government outrageously steep fines.

And, the HHS mandate kicks in starting tomorrow, August 1st!

Remember how the judges who threw out the cases in Nebraska and against Belmont Abbey said that they couldn’t decide until the violation of religious liberty was imminent? 

Well, private companies like the Newland’s Hercules Industries don’t have a year’s grace under the Administration’s so-called “accommodation.”  So, the Colorado case is the first opportunity a judge has had to get to the real heart of the matter – and the judge ruled in favor of religious liberty!

Would you believe that the government actually argued that people of faith shed their right to religious liberty once they engage in commerce?  Here’s what they said:  “[A] secular employer does not engage in any ‘exercise of religion.’”   It’s outrageous to deny a person the right to religious liberty because he or she provides jobs and makes a profit!

The Colorado case is one of four challenges currently brought by private businesses against the HHS mandate.  As their health plans become affected, too, we may very well get more good news like this.  What’s more, this positive momentum may very well draw more family-run businesses into the fight for religious liberty!


Courtesy of The Becket Fund.

Based in Washington, D.C., The Becket Fund for Religous Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. The Becket Fund has a 15-year history of defending religious liberty for people of all faiths. Its clients have included Buddhists, Christians, Hindus, Jews, Muslims, Sikhs, Zoroastrians, and others. Its attorneys are recognized as experts in the field of church-state law.

 

For more information or to arrange an interview with one of the attorneys please contact Montserrat Alvarado at malvarado@becketfund.org or call 786.246.5385
  • Seems to me two sets of principles are getting confused by the Catholic employer: (1) the rights of each individual to access health care in accordance with one’s own conscience and (2) the policies and procedures of an employer. No one would expect the government to require a Catholic individual, who is in business to obtain contraceptives for himself or herself. But by the same token, an employer may not bar an employee from contraceptive services simply because the employer does not elect this service for himself or for herself.

  • What about the conscience rights of the employees? Seems to me two sets of principles are getting confused in this litigation: (1) the rights of each individual to access health care in accordance with one’s own conscience and (2) the policies and procedures of an employer. No one would expect the government to require an individual Catholic employer to obtain contraceptives for personal use. But by the same token, a Catholic employer may not bar an employee from contraceptive services simply because the Catholic employer does not elect this service for himself or for herself.

    • Mary Kochan

      I am upset because you are denying me access to a 2013 Escalade by not buying me one.

      • goral

        Mary, I’m a little surprised that you would make such a lavish demand (tic). Can’t you just settle for a car that the gov’t subsidizes, such as the Prius or the Chevy Volt. I mean, it’s not as if the lives of the unborn were depending on it. (SB)

        I wouldn’t get too pulled in by Dick Cook. I have a feeling that he’s really Sandra Fluck with a disingenuous handle.

  • GuitarGramma

    Mr. Cook, it seems to me that two sets of principles are getting confused by you: (1) No Catholic employer is barring any employee from accessing contraception and (2) Any woman can pay for contraceptives out of her own pocket without expecting her Catholic employer to foot the bill.

    Two more points: (1) Men pay for their own condoms and (2) When I first went to work, I had health insurance which did NOT pay for contraceptives; employees were expected to bear their own costs for these elective devices and pharmaceuticals.

    To paraphrase a delightful YouTube video: If you were Jewish, I would not expect you to buy me a ham sandwich. If you were an atheist, I would not expect you to buy me a Bible. Since I am a Catholic business owner, why would you expect me to buy your significant other’s contraceptives?

  • Response to Mary & Guitar: sarcasm is not likely to convince many folks. The issue is equal access to a government-provided service. No employer can block employees from this access based on the free exercise of religion because the employer’s religious practices are not being interfered with. Invoking “conscience” in order to interfere with the exercise of “conscience” by another is not likely to persuade a court here in the US. Would you think it proper for a Jehovah’s Witness employer to interfere with employee access to a blood transfusion, on the ground of the employer’s personal religious convictions?

    • Mary Kochan

      Richard, why are you calling this a government-provided service? What government entity is providing the service?

      • Hi Mary, The ACA is run by the Department of Health and Human Services. Under the ACA, the federal government has established an “exchange” to be run by the states; the exchange permits people with no health insurance to select insurance; many individuals who select, may qualify for a rebate in the form of a tax credit; states who do not want to participate may opt out initially, in which case the federal government will set up the exchange in that state. The ACA is certainly a government-provided service, similar to medicare, which I well recall was resisted by many, incl the AMA, but which now is accepted and generally viewed as a valuable service. Hope this helps . . .

        • Mary Kochan

          You are correct about the ACA. But we are not talking here about health insurance exchanges set up under the ACA. We are talking about employer provided insurance plans underwritten (i.e. paid for in part) by employers. You said “The issue is equal access to a government-provided service.” What are you talking about? What service? Provided by what government entity?

          • Mary, yes, the exchanges are the service at issue.
            Equal access to the exchanges is the legal issue.

            An employer is not likely to win in court by arguing that the “conscience” of the employer permits that employer to violate the “conscience” of each and every employee by deciding which insured health care items the employee may or may not receive. This stance, clearly, ignores the right to an unfettered conscience in the employee.

            I hope this is clear, since many of the lawsuits that have been brought emphasize the “conscience” or the “religious liberty” of a business enterprise while ignoring the “conscience” of actual individuals.

            No individual who goes into the secular marketplace and sets up a business is engaged in the exercise of religion. Rather, a secular product or service is on offer and employees are engaged to further this business activity. Those employes may not be subjected to discrimination and barred from a government service, on the grounds of the religious convictions of the employer (who likely is not even an individual but a corporation or a partnership or some other legal entity).

            Permit me to repeat my earlier question (above): Would you think it proper for a Jehovah’s Witness employer to interfere with employee access to a blood transfusion, on the ground of the employer’s personal religious convictions?

          • Mary Kochan

            Sorry, Richard, but you are simply mistaken in your facts. The exchanges are for uninsured people who make their own insurance purchases. This has nothing to do with what we are talking about. Employers have nothing to do with “access” to the exchanges, which do not sell insurance to businesses, but to private individuals. Actually, the exchanges are just a marketplace for people to select their own private plans. In that case, the contract is between the individual and the insurance company, with the proviso in some cases, as you pointed out, that the government subsidizes the cost. No employer has any way to keep anyone from going to the exchange and buying insurance.

            That is a completely separate issue from the instance we are talking about in this article and comments. We are talking about the insurance bought by the employer and offered as a benefit of working for the company to the employee. Do you understand that this has nothing to with access to a government service?

            I’ll deal with your JW question in a separate comment later. I’m pressed for time today with a new student (granddaughter) just added to my homeschool situation. So I might not get to it until this evening.

          • Mary Kochan

            Well, I had some connection troubles so I’m just getting back to this and I am disappointed to see that Richard has left the conversation. I like that Richard was attempting to do the right thing in making an analysis of the issue. That is, he was attempting to explicate a principle and then apply it to the facts of a case. His problems were that 1. he did not clearly understand which principles were involved, nor their hierarchy of importance (i.e. relative weight), and 2. he was mistaken about the facts in the case. However, his impulse — to argue based on principles and apply them to facts — is a good impulse. It is the only way to engage in rational conversation about issues.

            Which leads into my answer to Richard about the JW business owner and blood transfusion. First, our principle. The reason that freedom of religion appears first in the Bill of Rights in the Constitution is because the framers understood it to be first in the hierarchy of freedoms. It would be too long here to elaborate on why this is — it has to do with their understanding of man, virtue, happiness, and a lot of other ideas that were commonplace to all educated persons in the West in their time, as well as to the history of the former colonies, now established as a nation. It remains first in the hierarchy of freedoms for those who retain or become acquainted with these classical concepts and the philosophical understandings upon which they rest.

            So do I think that a JW business owner must, against the dictate of his conscience, pay for the blood transfusion of his employee? (Actually his paying for it via insurance IS NOT forbidden by the JW religion, but for the sake of argument, we will pretend it is.) The answer is no. The law should not compel him to do so. But, but, but…. what right does he have to prevent his employee from having access to a blood transfusion? None. And he is not preventing his employee from having access. NOT PAYING FOR IT DOES NOT EQUAL DENYING ACCESS. The employee can agree to a blood transfusion as part of a medical procedure and pay for it himself. All that is required is for the employer to be honest and open with the people he hires and let them know up front that the insurance his firm has contracted with excludes the benefit of blood transfusion. If that bothers a potential employee, he is not required to work for that company. After all, he isn’t a slave or captive being forced to take a certain job.

            (Let me insert here, that the blood transfusion question is not really analogous to the birth control/abortion issue. Blood transfusion is a medical procedure used to correct a bodily deficiency (i.e. not enough plasma volume to carry oxygen to the body). Birth control does not correct or aid any part of the body that is malfunctioning; instead, its purpose is to prevent the correct functioning of a bodily system. And abortion destroys a human life. But I am allowing the analogy in order to demonstrate the point and meet Richard on the table he set.)

            Perhaps the JW employer recognizes that in order to hire the most qualified people he has to offer some other insurance/medical benefit to “sweeten the pot”, so maybe he offers a lower deductible, or vision and dental, or gym membership. Or maybe he pays better than his competition. He can pursue whatever course of action he deems most beneficial to his business in line within the dictates of his conscience. This is called “freedom”, folks. You might remember it.

  • GuitarGramma

    Mr. Cook — Regarding your statement, “Response to Mary & Guitar: sarcasm is not likely to convince many folks.”

    I was not being sarcastic. I stated several facts: no one is barring anyone from purchasing contraceptives on their own; men buy their own contraceptives regularly; it used to be common to have health insurance that did not pay for contraceptives, and BTW in those days no one I knew was going broke from buying them on their own. I then gave a short set of questions striving to put this issue into terms that seem quite logical to me.

    I’m quite befuddled about where you read sarcasm.

    As to the health exchanges, my understanding is that those are available to people who do not have insurance through their employers. If my understanding is correct, then my argument stands: Catholic employers should not be forced to pay for policies which violate their moral consciences. Women who still desire to work for a Catholic employer may purchase contraceptives on their own.

    On the other hand, I am very open to you showing me evidence that a Catholic employer who offers health insurance to his employees would have anything to do with the new health insurance exchanges.