Friday, September 6, 2013

Liberty University Asks Supreme Court to Review Freedom of Religion Challenge to Obamacare

I came across this news article after posting today's blog.  It's big enough news to justify its own post.  It's about HHS's requirement (under the authority of Obamacare) to mandate every policy provide coverage for contraceptives, including abortion inducing drugs, over the religious objections of employers.  Basically, religious employers like the Catholic Church and Liberty University argue that it violates their freedom of religion to force them to pay for drugs that they find morally objectionable, whether they are forced to pay directly through a self-insured plan or indirectly through some other insurance plan.

Liberty University has filed a petition for certiorari asking the Supreme Court to reverse the lower court's ruling against it.  WND has a detailed discussion of the case and issues here.

Before getting to the specifics, let me lay out some background.  The Supreme Court has almost absolute authority to pick and choose which cases it wants to hear.  A party who loses a case in a lower court must file "a petition for writ of certiorari" asking the Supreme Court to accept the case (called "granting cert" for short).

Last I checked, in only about 1 in 100 cases does the Supreme Court grant cert but Wikipedia says they accept about 5%.  They tend to accept cases where (1) there are inconsistent decisions in the lower courts; (2) the issue is really important and clearly raised by the case; and (3) they suspect the lower court likely came to the wrong decision.

So in Liberty University v. Lew, Liberty is trying to convince the Court those three things are true.  Given the magnitude of the case, they probably have a better chance than usual of getting cert granted.  But it's still a long shot.

Liberty raises several issues, all of which are of great importance.  The first two argue that it's not constitutional to force private employers to purchase expensive insurance under the threat of heavy fines.  In other words, it is not really regulating commerce or validly imposing a tax to order companies to do things under the threat of huge fines.  Fines for failing to provide compliant insurance can be as high as $100 per day per employee.  If an employer has 1000 employees, that's $100,000 per day or $3,000,000 per month.

The government has the option of raising the penalty to $15,000/day per employee in egregious cases.  For our hypothetical 1000 employee company, that would be $15,000,000 per day or $450,000,000 per month.  Liberty may have a point that the government is coercing rather than regulating or taxing.

The next three issues raise the freedom of religion issue.  Liberty basically says that the government is forcing them to go against their religious beliefs by paying for abortion inducing drugs (aka abortificants).  The government argues that it is up to the employee to decide whether it is right or wrong to use these products.  The employer has no right to impose its religious beliefs on the employees by withholding drugs many people believe are acceptable to use.

We'll have to keep an eye on this.  It may be several months before the Supremes decide whether to take the case.

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