Obama administration backs out of appeal over new contraceptive mandate (+video)

Government lawyers give up their challenge to a temporary injunction in a Bible publisher's lawsuit and will battle the issue in another pending case at the appeals court.

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    President Barack Obama and Health and Human Services Secretary Kathleen Sebelius leave the Brady Press Briefing Room of the White House in Washington, after the president announced the revamp of his contraception policy requiring religious institutions to fully pay for birth control, February 2012.
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A federal appeals court in Washington has granted a request by the Obama administration to back out of an appeal involving a publisher of Bibles who is refusing for religious reasons to provide contraceptives to his employees under the president’s new health-care mandate.

Mark Taylor and Tyndale House Publishers sued the Obama administration on grounds that the Affordable Care Act’s mandate concerning provision of contraceptives violates the publisher’s sincerely held religious beliefs.

The ACA requires that employers provide cost-free contraception for their workers – including the so-called morning after pill, which some critics say is an abortion-inducing drug.

Fifty-nine lawsuits on behalf of nearly 200 plaintiffs have been filed by individuals and companies across the nation charging that the new health-care mandate violates basic tenants of religious liberty and conscience.

The dispute is developing into a major showdown pitting the scope of religious freedom against government power to regulate conduct of the faithful.

The plaintiffs are asking the courts to block the Obamacare contraception mandate. Many of the cases are reaching the appellate level where judges in the Tenth, Sixth, and Third Circuits have denied requests for temporary injunctions. Judges in the Seventh, Eighth, and District of Columbia Circuits have granted temporary injunctions.

The Tyndale House case arrived at the District of Columbia Circuit after a federal judge in Washington last fall issued an injunction blocking the Obama administration from enforcing the contraception mandate against the Bible publisher and his company.

Administration lawyers had argued that for-profit companies can’t claim religious rights. Even if they could, government lawyers said, the decision whether to use contraceptives belongs to employees, not the employer.

The administration also argued that any burden on religious views would be outweighed by a more important government objective: “improving the health of women and children, and equalizing the provision of preventive care for women and men so women who choose to do so can be part of the workforce on an equal playing field with men.”

Lawyers for Taylor and Tyndale House countered that their clients had a right under the First Amendment and the Religious Freedom Restoration Act to practice their faith without having to accommodate their beliefs to the government’s goal of advancing women’s health and equality.

They said there is a less restrictive means for the Obama administration to achieve that end: The government could provide contraceptive services itself, rather than forcing religious objectors to do so.

After the judge in Washington issued his temporary injunction, government lawyers filed an appeal in January.

But late last month, Justice Department lawyers asked the appeals court to dismiss their appeal. They told the court that another case involving a religious challenge to the health-care mandate was already before a different three-judge appeals court panel in Washington.

Tyndale House’s lawyers objected. Even though they had won in the lower court, they now wanted the appeals court to take up the issue and decide it.

The government countered in its brief: “No statute or rule permits a prevailing party to require that an enjoined party pursue an interlocutory appeal.”

On Friday, the appeals court panel granted the government’s request and dismissed the appeal.

The panel was composed of two judges nominated by President George W. Bush and a judge nominated by the first President Bush.

The other contraception mandate case at the appeals court is before a judicial panel composed of two judges nominated by President Clinton and one nominated by George W. Bush.

Matt Bowman, lead counsel for Tyndale House, claimed victory on Monday when word of the court’s action circulated.

“Bible publishers should be free to do business according to the book that they publish,” he said in a statement. “The government dismissed its appeal because it knows how ridiculous it sounds arguing that a Bible publisher isn’t religious enough to qualify as a religious employer.”

Mr. Bowman, a lawyer with the conservative public interest group Alliance Defending Freedom, said the administration’s move was a “retreat” in court.

“We will continue to argue that the administration cannot disregard the Constitution’s protection of religious freedom for all family business owners and must offer a comprehensive exemption to the mandate,” he said.

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