The U.S. District Court for the District of Colorado has issued a preliminary injunction against the federal government in a lawsuit brought by a private corporation, Hercules Industries, Inc., and its owners and several individual plaintiffs, alleging that the HHS Mandate violates their religious liberty. These plaintiffs, unlike many of the plaintiffs in the other suits, were never within the safe harbor and do not qualify for the “religious employer” exemption of the HHS regulations. Rather, Hercules is a for-profit, secular employer whose owners are individuals with objections of religious conscience — they are Catholics. And Hercules is self-insured.
Of the four elements for obtaining a preliminary injunction, the most interesting is the likelihood of success on the merits. The court declined to address the plaintiffs’ constitutional claims (free exercise, establishment, and speech clauses) and instead resolved the case on the basis of the statutory claim under the Religious Freedom Restoration Act. Although it was comparatively non-committal on the question of substantial burden (holding that the question of whether a corporation could “exercise religion” “merit[s] more deliberate investigation”), it was clear that the government would likely fail on both the issues of furthering a compelling interest and least restrictive means. Here’s the Court on compelling interest:
I do not mean to suggest that the government may not establish a compelling interest in the uniform application of a particular program. To make such a showing, however, the government must “offer evidence that granting the requested religious accommodations would seriously compromise its ability to administer this program.” Any such argument is undermined by the existence of numerous exemptions to the preventive care coverage mandate. In promulgating the preventive care coverage mandate, Congress created significant exemptions for small employers and grandfathered health plans . . . . Even Defendants created a regulatory exemption to the contraception mandate . . . . “[A] law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) . . . . The government has exempted over 190 million health plan participants from the preventive care coverage mandate; this massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs.
And here is the Court on the least restrictive means prong:
Plaintiffs propose one alternative, government provision of free birth control, that could be achieved by a variety of methods: creation of a contraception insurance plan with free enrollment, direct compensation of contraception and sterilization providers, creation of a tax credit or deduction for contraceptive purchases, or imposition of a mandate on the contraception manufacturing industry to give its items away for free. Defendants argue Plaintiffs’ “misunderstand the nature of the ‘least restrictive means’ inquiry.” According to Defendants, this inquiry should be limited to whether Plaintiffs and other similarly situated parties could be exempted without damaging Defendants’ compelling interest.
It is, however, not Plaintiffs but Defendants who misunderstand the least restrictive means inquiry . . . . Despite their categorical argument, Defendants attempt to refute Plaintiffs’ proposed alternative. First, Defendants argue that because Plaintiffs’ alternative “would impose considerable new costs and other burdens on the Government and are otherwise impractical,” they should be rejected as not “feasible” or “plausible.” Although a showing of impracticality is sufficient to refute the adequacy of a proposed alternative, Defendants have failed to make such a showing in this case. As Plaintiffs note, “the government already provides free contraception to women.”
Defendants also argue Plaintiffs’ alternative would not adequately advance the government’s compelling interests. They acknowledge that Plaintiffs’ alternative would achieve the purpose of providing contraceptive services to women with no cost sharing, but argue that Plaintiffs’ alternative will not “ensur[e] that women will face minimal logistical and administrative obstacles to receiving coverage of their care.” Although Plaintiffs argue that this amounts to a redefinition of Defendants’ compelling interest, it is instead a logical corollary thereto. Nonetheless, Defendants have failed to adduce facts establishing that government provision of contraception services will necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventive health care coverage to women. Once again, the current existence of analogous programs heavily weighs against such an argument.
Defendants bear the burden of demonstrating that refusing to exempt Plaintiffs from the preventive care coverage mandate is the least restrictive means of furthering their compelling interest. Given the existence of government programs similar to Plaintiffs’ proposed alternative, the government has failed to meet this burden. (footnotes and citations omitted)
The case is Newland v. Sebelius. I’ll have some further commentary about what this ruling might mean for the other law suits. The bottom line is that plaintiffs which do not present the same substantial burden questions in other suits and that are able to convince a court to get to the merits (that is, to get past the ripeness obstacle) may have, as I’ve said before, some pretty good odds.