setback in court. A federal judge in Colorado recently ruled that the Department of Health and Human Services mandate that all insurance policies cover contraceptive and abortifacient drugs placed an illegal burden on freedom of religion.
Judge John Kane’s ruling was narrow, currently applying only to Hercules Industries according to Talking Points Memo. The company filed suit against the mandate claiming that it violated the Catholic beliefs of its owner. Judge Kane agreed and granted an injunction that prevented enforcement of the mandate against Hercules until courts could rule on the merits of the case. Judge Kane was an appointee of Democratic President Jimmy Carter.
There are also other lawsuits challenging the mandate that could benefit from the precedent set by Kane’s ruling. According to the Catholic News Agency, at least 43 Catholic groups have filed suit against the HHS mandate. Atlanta Archbishop Wilton Gregory told the Georgia Bulletin that Georgia dioceses are not a part of the litigation, but are working to support it. He called on Catholics to “pray for its success and support the initiatives that are intended to protect our religious freedom.”
Judge Kane based his ruling on the Religious Freedom Restoration Act of 1993. This law requires that any “substantial burden” placed on religious beliefs having a “compelling government interest” and be the “least restrictive means” of advancing that interest. Judge Kane found that the HHS contraceptive mandate placed a “substantial burden” on Hercules’ First Amendment right to the free exercise of religion.
The Hercules case will not provide a silver bullet to slay Obamacare. A court may rule that the HHS mandate is illegal, but it is unlikely to throw out the entire law. A Supreme Court ruling in June established the constitutionality of the law by granting Congress an immense new taxing power.
Kane’s injunction does set the stage for a landmark ruling on freedom of religion, however. If a court subsequently rules in favor of Hercules it could strike down the mandate entirely. Either way, the ruling is likely to be appealed by the losing party and could eventually find its way to the Supreme Court.
In the end, the election may render the challenges against the mandate moot. If Mitt Romney becomes president, he has stated that his first act would be to issue an Executive Order that would stop the implementation of Obamacare. If Republicans win control of the senate, a repeal of Obamacare would be certain to pass both houses of congress.
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