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  1. RE: “Critically, AP has thus far failed to question why Supreme Court Justice Sonia Sotomayor refused to grant a TRO to Hobby Lobby, which is only questioning a portion of the contraception mandate and not its entirety, and which faces fines amounting to $1.3 million per day.”
    There is apparently a higher standard for the legal basis to win a Supreme Court level injunction.

    Another case to watch is the Kortes case, which won its injunction at a lower level.

    Some coverage is here:

    Here is a summary of the Kortes decision from an Insurance Journal, with better coverage on Law blogs with quotes from the Judges:

    From the Volokh article to Lyle Denniston’s report, here is the SCOTUSblog coverage:

    “Religious employer wins big — temporarily”

    ” In the most significant federal appeals court ruling so far on the new federal health care law’s contraceptives mandate, the Seventh Circuit Court on Friday night temporarily barred the federal government from enforcing that requirement against an Illinois construction company whose Roman Catholic owners see it as a threat to their religious freedom. In a two-to-one ruling, the panel of the Chicago-based court acted two days after Supreme Court Justice Sonia Sotomayor had refused– for different reasons — to block enforcement of the mandate against an Oklahoma family and its businesses.

    The Seventh Circuit decision was of potentially major significance, because it marked the first time that a federal court at that level had accepted — at least temporarily — the argument that a profit-making company owned and run by people of strong religious faith fully shares their right to protection of their religious principles.

    Under the new health care law, employers who do not qualify for exemptions must provide their women workers of child-bearing age — [!*!] without cost [!*!] — with insurance coverage for the full range of contraceptive drugs and other birth control and pregnancy prevention measures. For non-exempt employers, the mandate is to become effect next Tuesday, January 1 [hence the filings for temporary injunction].

    [I found this part really interesting, that the Kortes' 2012 plan covered contraceptions but now they are trying to remove that coverage. Shows the false campaign claim: 'If you like the coverage you have, you can keep it'. Other articles explained legal citations that one can claim a Religious Freedom without having always been super devout.] ” The Kortes have told the courts that they did not realize until recently that their health plan for those twenty workers did provide for coverage of contraceptives. They want to drop that plan as of January 1, and set up a new one without that coverage, and they sued to get the right to do so free of the new law’s mandate.”

    …The Kortes’ main challenge is under the Religious Freedom Restoration Act, and it was that challenge that the Seventh Circuit majority concluded is likely to succeed when their appeal is decided. The new mandate, it concluded, probably will be shown to impose a “substantial burden” on the couple’s religious faith and on the religious principles on which they run their company. The panel majority also concluded that the federal government has not yet shown a compelling interest, in assuring contraceptive coverage, that was significant enough to justify the burden on the family’s faith.”

    [I don't see in this article something I read elsewhere that seems important. Another reason the Kortes' may likely succeed is an argument that the mandate is not structured as the Least Intrusive Means to accomplish the objective. The govt first has to have a Compelling Interest to impose a burden. If meets the Compelliing Public Interest burden, then the method of imposing that burden must be as Least Intrusive as possible of the Liberty interests of the citizen. Imposition of the mandate AND the detail that it must be a No Cost seems obvious as NOT the least intrusive method.]

    [ At a Religious Freedom level, I believe the total mandate is morally wrong, and the first level fight is for the High Principle of Religious Freedom. Yet, legal fights can be unpredictable. If by some unexpected argument, the AFA mandate and especially the contraception mandate do survive through Supreme Court scrutiny, then eventually the Practical application of the as-written language will cause it to fall. A no cost mandate is completely unacceptable. If approved, where could "no cost" mandates end; should all employers be required to provide broccoli in the snack room? ]

    Comment by cornfed — January 1, 2013 @ 1:00 pm

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