Today a federal court in Colorado granted a preliminary injunction to Hercules Industries, and the family members that own it, enjoining the government from requiring them to comply with the contraception coverage requirement under the Affordable Care Act. Hercules and the Newland family, which says it operates its company according to Catholic principles, had sued to have the requirement declared unconstitutional, but the court ruled only with respect to Hercules’ compliance with it, and not on constitutional grounds.
Notably, the court based on its decision solely on the Religious Freedom Restoration Act, not on the plaintiffs’ claims under the First Amendment’s Free Exercise, Establishment, and Free Speech clauses. Under that standard, the court determined that the Newlands and Hercules would suffer a substantial burden on their free exercise of religion should they be required to provide contraception coverage under their self-insurance that that provide to the company’s employees, and that the government had not implemented the least restrictive means of carrying out a compelling government interest.
The case is significant because most of the other lawsuits involve religious institutions, such as hospitals, schools, and Catholic dioceses, rather than private, for-profit companies. Judge John L. Kane rejected the government’s argument that a private company cannot make a religious freedom claim.
In weighing the requirements for a preliminary injunction, the court found that “the threatened harm to Plaintiffs, impingement of their right to freely exercise their religious beliefs, and the concommittant public interest in that right srongly [sic] favor the entry of injunctive relief.”
In a statement, Sarah Lipton-Lubet, policy counsel for the ACLU’s Washington Legislative Office, said, “We are disappointed with today’s decision. It is unacceptable for employers – especially for-profit companies – to use their personal beliefs as an excuse to deny critical health coverage to the people who work for them.”
She added, “This is not religious freedom, this is discrimination. Real religious liberty gives everyone the right to make their own decisions about their own health, including whether and when to use birth control. It doesn’t give anyone the right to impose their beliefs on others.”
The court did emphasize “the ad hoc nature of this injunction. The government’s arguments are largely premised upon a fear that granting an exemption to Plaintiffs will necessarily require granting similar injunction to all other for-profit, secular corporations voicing religious objections to the preventive care coverage mandate. This injunction is, however, premised upon the alleged substantial burden on Plaintiffs’ free exercise of religion – not to any alleged burden on any other party’s free exercise of religion. It does not enjoin enforcement of the preventive care coverage mandate against any other party.”
Nonetheless, in a statement, the Becket Fund for Religious Liberty, which represents these plaintiffs and others in similar lawsuits, claimed, “This decision portends the demise of the current Administration’s attempts to drive religious activity from the public square and confine it within the four walls of a church.” But Brigitte Amiri, Senior Staff Attorney at the ACLU’s Reproductive Freedom Project countered, “That is a gross exaggeration of today’s ruling, which was limited to one company and temporary. We hope that as the case progresses that the courts will ensure that employers cannot use their religion to discriminate, and that all women have coverage for all the health care they need.”