Last June, the Supreme Court decided that the ObamaCare individual mandate passed constitutional muster under Congress’s taxing power.  It left undecided a host of other issues that are now being litigated in the lower courts.

Under the HHS mandate that followed ObamaCare, employers with 50 or more full-time employees must offer health-insurance coverage for sterilization procedures and contraception, which, despite White House claims to the contrary, includes abortion-inducing drugs.  Those who refuse face a fine of approximately $100 per day per employee.  Regulations provide that some “religious employers” are exempt from the sterilization and contraception coverage, but this safe harbor does not apply to for-profit companies owned and operated by Christians.  Accordingly, Christian business owners across the country are now challenging the application of the HHS mandate.

Their claims are primarily based on the Religious Freedom Restoration Act (RFRA), which prohibits government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.”

The Christian businesses have sought preliminary injunctions on enforcement of the contraception mandate during the litigation, which would exempt employers from having to provide the offending coverage as well as the monetary penalties for not doing so.

Preliminary injunctions preserve the status quo and are granted if a party can show a likelihood of success on the merits and a threat of irreparable harm that outweighs any harm to the government, and that the injunction would not adversely affect the public interest.

Courts generally conclude the first condition is satisfied if a plaintiff can show that a claim is not frivolous.  In affidavits, the Christian business owners have sworn that providing the infringing coverage runs counter to their religious beliefs and practices, so the burden under RFRA shifts to the government to show a compelling state interest, which the mandate is the least restrictive means of accomplishing.  The interests cited by the government are public-health concerns, specifically of women and children.  Besides the fact that killing a fetus hardly promote its health, the government further stumbles on the least-restrictive-means requirement of RFRA.  Rather than forcing Christian employers to provide this coverage, government could create a sterilization/contraception plan with free enrollment, provide tax credits to individual purchasers of these drugs, or simply give these items out at all government clinics.

The “balancing of the harms” also seems to favor the Christian business owners.  The government’s harm is prevention of enforcement of regulations that Congress believes are in the public interest, while the Christian owners face a harm that violates their First Amendment rights.  Nor would an injunction itself unduly harm the public interest.  While the public has an interest in the enforcement of laws and regulations, that interest is easily countered and outweighed by the free exercise of religious beliefs.  Moreover, to the extent that the government has already carved out exceptions for “religious employers,” it can hardly argue that the greater public interest demands immediate enforcement of the contraception mandate in every case.

In two high-profile cases, courts have granted injunctions.  But a judge in the Western District of Oklahoma refused the injunction sought by Hobby Lobby.  Hobby Lobby has 500 stores in 41 states and employs some 22,500 individuals nationwide.  Its owners are evangelical Christians who close the business on Sundays.

The denial of the injunction meant that Hobby Lobby was faced with up to $1.3 million per day in fines.  Determined to go forward with the lawsuit and not comply with the mandate, Hobby Lobby was forced to switch insurance plans in order to gain a few more months before the penalties kick in.  “[O]ur family is now being forced to choose between following the laws of the land that we love,” owner David Green says, “or maintaining religious beliefs that have made our business successful and have supported our family and thousands of our employees and their families.  We simply cannot abandon our religious beliefs to comply with this mandate.”

District Judge Joe Heaton, a George W. Bush appointee, denied the injunction on grounds that “secular, for-profit corporations such as Hobby Lobby . . . [do not] have a constitutional right to the free exercise of religion.”  The judge further declined to find that Hobby Lobby counts as a “person” under RFRA.  The judge made this ruling despite the current U.S. Code, which provides that “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,” unless the context indicates otherwise.

Much is at stake.  If the government prevails, many successful Christian businesses will be forced to shut their doors and put thousands of people out of work.  Forcing Christians out of the business world will only multiply the evil perpetrated on American society by the contraception mandate.