HHS MANDATE - Judge calls government's arguments "perplexing and troubling," 'unconvincing," and concludes "the [HHS] mandate is self defeating." - legal battle against HHS mandate is picking up some momentum.

Visit Our Website November 5, 2013

Dear Friends,    At my kids'  carpool last week, a good friend told me she read my updates. (I must confess I was flattered.) Then, she knocked the air out of my feeling flattered when she added: "I find them depressing."    Friends, depression is not an option.   Sure, the affront to our freedoms is alarming.   Sure, the fight is complex and, at times, tiring.   But, I work at the Becket Fund for Religious Liberty because I know we can win.   We have a terrific team. (I pasted our entire team photo below.)   We have a clear and tenacious strategy. And, we have an unfair advantage:  We are right. The other side would have you believe they are in the majority.  And that all is lost for our cause! That is absurd. They are not, and we can only lose if we despair.    Plus, there is that principle called: the rule of law.   The courts are listening to our arguments and not the government's reasoning.   Look at this huge win last Friday:   The D.C. Circuit Court of Appeals, which is considered widely "the second most influential bench in the land behind the Supreme Court" ruled 2-1 in favor of the two Catholic business owners, the Gilardi brothers, who are fighting the Health and Human Services contraceptive mandate.   The decision is a delicious read. Please do not miss it!   Here are some of my favorite parts:   On the first sentence, the judge says: "[W]e are asked to revisit the behemoth known as the Affordable Care Act."   Now, we know things are going to go badly for the government, when the judge chooses to use the word "behemoth."   Then things get worse for the government. And much better for the cause of freedom.   The opinion quotes Jefferson "that the right to free exercise necessarily prohibits the government from 'compel[ling] a man to furnish contributions of money for the propagation of opinions which he disbelieves.'"   And, to my personal delight, John Locke: "Penalties are impertinent, according to Locke, if they are used to compel men 'to quit the light of their own reason, and oppose the dictates of their own consciences.'"   But, the judge does not stop there. She goes to James Madison who, as we all know, "described conscience as 'the most sacred of all property.'"   Finally, the opinion states that the Gilardis (the two Catholic brothers) are burdened "because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong. If that is not 'substantial pressure on an adherent to modify his behavior and to violate his beliefs,' we fail to see how the standard could be met."   The judge goes on to call the government's arguments "perplexing and troubling," 'unconvincing," and concludes by stating "the [HHS] mandate is self defeating."   The judge's opinion leans heavily on the decision made by the Tenth Circuit in the win for our client, Hobby Lobby. One of the judges even quotes a law review article written by one of our great attorneys, Mark Rienzi.   The arguments we are making in court are making a difference.   I should add one more reason why we can win: I have your support. As you know, this is an expensive fight. We represent all of our clients pro-bono, without charging them. All of our funding comes from individuals like yourself.   In short, do not be depressed. Join me and my great team at the Becket Fund!    All we do, we do together.     Sincerely,   Kristina Arriaga Executive Director          P.S.  Last week one of our terrific attorneys, Lori Windham, appeared on TV speaking about our HHS cases. Click to watch it!     We expect to hear soon, perhaps before Thanksgiving, about whether or not the Supreme Court will hear the Hobby Lobby case next year. Keep tuned in! Every single person makes a difference. If you have not done yet, please ask your friends to sign up to our eblast and/or join our Facebook page.

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Hi! It’s been too long! But I did want to tell you what I believe to be good news.  The legal battle against the HHS mandate is picking up some momentum.

First, last Friday, the Court of Appeals for the D.C. Circuit temporarily “enjoined”/stopped the Mandate at the request of two brothers/owners of two closely held corporations.

While the opinion denied the existence of “free exercise” rights by non-religious organizations, it stated that the Gilardi brothers’ personal free exercise rights were clearly violated.  On this point the opinion had awesome language.  Quoting Thomas Jefferson, it said that they were being “compell[ed] to furnish contributions of money for…opinions” which they denied, and that the Mandate was “compelled affirmation of a repugnant belief.”  It also refused to credit the federal government with a “compelling state interest” sufficient to trump the Gilardis’ religious freedom.  You will be amazed to hear that among the reasons for this conclusion was the court’s noting that the government had never resolved the contradiction between its claims about birth control and women’s health, and information about the carcinogenic properties of some forms of the pill. Very interesting!!

Second, the U.S. Supreme Court is currently considering a few petitions regarding the HHS Mandate.  These include the Hobby Lobby case (10^th Circuit of Appeals determined that Hobby Lobby should not be subject to the Mandate); The Conestoga Wood Specialties Corp. case, (3^rd circuit court of appeals denied an injunction;) and the Autocam case (Sixth Circuit Court of Appeals dismissed case).

When Courts of Appeals disagree, SCOTUS is often very interested to hear the issue. If SCOTUS takes any of these cases, I’ll be sure to file an amicus brief making our case, ok?

Finally, a request (of course, right?):

I’ve received requests from Members of Congress for letters to all your Representatives in support of Congressmen Smith’s H.R. 3279, the “Abortion Insurance Full Disclosure Act.” Can I bother you again for letters? I know it feels sometimes these letters don’t make an impact, but they do. One member that wrote me, asked specifically for women’s support!

Here’s some background information on the bill.

Background: Anyone who enrolls in a federally subsidized health care plan that covers elective abortions will pay a “abortion fee” of at least $1 per month into a fund to pay for abortion on demand (Section 1303(b)(2) of the ACA). In addition, under the secrecy clause, plans that cover abortion are only allowed to disclose the abortion surcharge “as a part of the summary of benefits and coverage explanation, at the time of enrollment” and information about the plan on the exchange may only list the total amount of the combined payments without specifying the surcharge (Section 1303(b)(3) of the ACA). Many families may choose a plan that covers abortion without realizing it or because that plan is the only one that covers the critical care that their family needs. The “Abortion Insurance Full Disclosure Act” amends the ACA to specify that plans must prominently disclose whether or not the plan includes abortion.  In addition, if a plan includes abortion, the plan must disclose the amount of the abortion surcharge.

Can you please call or write your Representative and ask that he or she support this act, H.R. 3279??? Regardless of your member’s opinion on abortion, you can make the case that Americans deserve the right to know what their money is subsidizing.

I’ll be in touch soon with some updates concerning our work.

In the meantime, thanks most sincerely for your continued commitment to our cause.

Gratefully,
Helen

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