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Hobby Lobby appeals contraception mandate ruling

Published: Tuesday, Nov. 20 2012 6:15 p.m. MST

A woman walks from a Hobby Lobby Inc., store in Little Rock, Ark., Wednesday, Sept. 12, 2012.

Associated Press

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Hobby Lobby, the largest for-profit company to sue the government over the Affordable Care Act's contraception mandate, has filed an emergency appeal of a federal judge's ruling that would require the arts and crafts chain to comply with the mandate or face millions of dollars in fines.

Oklahoma U.S. District Judge Joe Heaton on Monday denied a request by Hobby Lobby to block the government from enforcing portions of the health care law, which mandates insurance coverage for contraceptives the company's Christian owners consider objectionable.

If the ruling stands, Hobby Lobby would face fines of $1.3 million a day beginning in January unless it complies with the federal mandate.

Hobby Lobby, which was started 1972 by David Green in his Oklahoma City garage, filed a request for emergency relief Tuesday with the 10th Circuit Court of Appeals in Denver.

“Every American, including family business owners like the Greens, should be free to live and do business according to their religious beliefs. The Green family needs relief now and we will seek it immediately from the federal appeals court,” said Kyle Duncan, an attorney with the Becket Fund for Religious Liberty, which is representing Hobby Lobby.

The Oklahoma-based company and a sister company, Mardel Inc., a Christian bookstore sued the government in September, claiming the mandate violates their Christian beliefs. In particular, the Greens contend the morning-after and week-after birth control pills, which would be covered under the mandate, are tantamount to abortion. They also object to providing coverage for certain kinds of intrauterine devices.

The Oklahoma ruling comes three days after a federal court in the District of Columbia granted Tyndale House Publishers' similar request for a preliminary injunction against the mandate. Tyndale, a Christian-owned publisher based in Illinois, sued the government in October, claiming the mandate to provide insurance coverage for the controversial contraceptives violated its constitutional and federal legal rights to practice its religious beliefs.

The D.C. court temporarily blocked the mandate for Tyndale because, in part, "the contraceptive coverage mandate puts substantial pressure on (Tyndale) to violate their religious beliefs against the provision of coverage for the three contraceptives at issue. Therefore, the requirement to provide such coverage directly burdens the plaintiffs’ religious objection to providing such coverage."

Heaton, however, ruled that while he didn't question the religious beliefs forbidding Hobby Lobby's owners from providing the birth control medications, the company was not a religious organization, which would have made it exempt from the mandate.

"Plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion," Heaton's ruling stated.

Monday's ruling is the second out of five cases involving for-profit companies to go against the owners, who claim the mandate to provide contraception coverage for employees violates their right to practice their religious beliefs under the Constitution and federal law.

Some 40 separate lawsuits have been filed against the government over the Affordable Care Act's contraception mandate.

Most of the plaintiffs are non-profit organizations, such as hospitals and schools, that are affiliated with a church but are not exempted from the mandate under federal rules. Several for-profit businesses have also sued, claiming the mandate violates the owners' religious beliefs, which infuse their business practices.

Hobby Lobby calls itself a "biblically founded business" and is closed on Sundays. The company operates more than 500 stores in 41 states and employs more than 13,000 full-time employees who are eligible for health insurance coverage.

"It is by God's grace and provision that Hobby Lobby has endured," said David Green, founder and CEO. "Therefore we seek to honor God by operating the company in a manner consistent with biblical principles."

The company, which is self-insured, provides preventive contraceptives, but the Green family objects to providing or paying for the “morning after” and “week after” pills, citing their religious belief that life begins at conception.

The morning-after pill works by preventing ovulation or fertilization. In medical terms, pregnancy begins when a fertilized egg attaches itself to the wall of the uterus. If taken within 72 hours of unprotected sex, it can reduce a woman's chances of pregnancy by as much as 89 percent.

Critics of contraception say it is the equivalent of an abortion pill because it can prevent a fertilized egg from attaching to the uterus. The Hobby Lobby lawsuit also alleges that certain kinds of intrauterine devices can destroy an embryo by preventing it from implanting in a woman's uterus.

At a hearing earlier this month, a government lawyer said the drugs do not cause abortions and that the U.S. has a compelling interest in mandating insurance coverage for them, according to the Associated Press.

Heaton wrote that he was not "unsympathetic" to the concerns raised by the Greens and stated the mandate raises issues that for-profit companies haven't faced before.

"The question of whether the Greens can establish a free-exercise constitutional violation by reason of restrictions or requirements imposed on general business corporations they own or control involves largely uncharted waters," Heaton wrote. "However, the court concludes it is unnecessary, as to the constitutional claims, to resolve those questions here as the challenged statutory scheme and regulations are substantially likely to survive constitutional scrutiny in any event."

Contributing: Associated Press

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