Hercules Industries, Inc. v. Obamacare

A better title for this post might be David v. Golliath, as once again, David wins the battle.  Only this time the battle involves Obamacare’s directive that all employers must provide insurance coverage for abortions and contraceptives.

Hercules Industries is a small Colorado heating and cooling company owned by the Newland family.  The owners are Catholic.  Beginning August 1, they would have been required to provide coverage to their employees for practices and medications that violated their religious beliefs.  To enforce their rights, the Newlands were forced to bring suit in federal district court in Colorado.

On Friday, the court granted a temporary injunction prohibiting the federal government from imposing penalities on the company for failure to comply with the HHS directive.

U.S. Judge John Kane in Denver said the requirements could violate the Religious Freedom Restoration Act, a 1993 statute that requires the federal government to consider the rights of faith based groups when crafting policy.

This, of course, is not the end of the litigation.  The court must determine whether the requirements actually do violate the Religious Freedom Restoration Act.  But what is interesting is that in order to grant a preliminary injunction, the court must first find that the party seeking the injunction has a substantial likelihood of ultimately winning the case.

What is the Religious Freedom Restoration Act?  It is really quite simple.  It provides that the,

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1)is in furtherance of a compelling governmental interest; and
(2)is the least restrictive means of furthering that compelling governmental interest.
So far, this is the first court to consider this issue, as we lawyers say, “on the merits”.  Two other cases brought by Catholic universities and hospitals have been dismissed by the courts because the requirements for such institutions will not go into effect until August 1, 2013, and the government argued in those cases that it would “work with” the institutions between now and then to try to reach a compromise.
Sadly, this administration’s view of compromise seems to be “do what we say, or else”.  But, I suppose there is always hope that the government will, as they say, get religion, between now and then.
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The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. JBS on July 28, 2012 at 4:46 pm

    Isn’t this a law from the Clinton WH that was championed by the Democrats? I seem to remember something about Native American groups being hounded by the government because of their religious practices.
    This will happen more often as companies and institutions find their beliefs in conflict with the government’s requirements. These people being made to pay for something they don’t believe in. Will individuals be able to sue for governmental violation of their personal religious beliefs?
    It should be interesting. Will Obama use the bully pulpit to whine that courts have no business deciding against “the law of the land?” What compelling interest could the Regime possibly have in forcing companies and other groups to buy aborti0n and contraceptive coverage? (The old, “‘eb-buds gotta pay fer it to be fair” argument?)
    I look forward to hearing the government’s lawyers define the “merits” of their case.

    • SoundOffSister on July 29, 2012 at 8:10 am

      The government’s argument on the merits is…people of faith forfeit their religious liberty once they engage in business.

    • stinkfoot on July 29, 2012 at 8:41 am

      People in general permitting the government to declare forfeiture of religious liberty on the basis of anything is unacceptable.? This seems to be part of a greater trend to culture the masses into ceding more and more liberties in order that the majority can in effect declare the constitution null and void- something this administration has already done as demonstrated by its actions.

  2. chetisyourbet on July 28, 2012 at 8:18 pm

    Maybe Washington will be like Chitown and Phily and say, “if your moral values and modern views don’t line up with ours we wont let you operate your business in this country”.
    Churches are forced to hire practitioners of vile affections which go against their religious views and no one seems to care.? but one catholic family gets an injunction and everyone is giddy?? come on wake up.
    our benefactors rule over us.

  3. kipitwic on July 29, 2012 at 7:18 am

    I am totally against Obamacare.? With that being said, I have a problem with companies picking and choosing what they want to pay for.? I don’t believe in abortion, unless a womans life is at stake or it is a case of rape.? With that being said, I don’t understand how a company’s owners can push their religious beliefs on their employees.? It is everyone’s right to have religious freedom; but, when you are an employer you should not be able to force other’s to your beliefs.

    • Dimsdale on July 29, 2012 at 11:26 am

      An employer should be able to run a business as they wish, although that is becoming increasingly difficult nowadays. ?If a company says you wear a uniform/suit, you do it or leave. ?If they pay for your bennies, you take that package or buy your own (or supplemant it on your own).People have a choice whether to work for a given company, while the company is being forced to kowtow to the preferences/beliefs of its employees.

      For the moment, it is about choice. ?If you don’t like it, start your own business and run it as YOU like.

    • Steve M on July 30, 2012 at 7:43 am

      You don’t understand how owners can push their religious beliefs on employees? How the heck are they doing that? I can not comprehend how someone can say that, when it’s totally the opposite.?Government?is demanding Catholic business owners pay for contraception. Employers are not forcing employees to take drug tests to determine if they are on contraception and firing them if they are … that’s what your?opinion?sounds like here. Some Catholic employers are simply saying, “hey, if you want it, pay for it yourself.”

  4. cherwin on July 29, 2012 at 12:33 pm

    If the company is family owned than I do believe they have the right to operate it as they chose. If it were a Jewish entitity or Muslim entitity or any other religious group, the government wouldn’t dare interfere.?But for some reason many seem to think that going against Catholics is OK. Well it’s not! We have a right to our beliefs and to express?and stand up for those beliefs. ?So I am glad they fought for their beliefs and have had somewhat of a victory.

  5. sammy22 on July 29, 2012 at 12:39 pm

    It’s always about choice, except when it’s not.

    • Steve M on July 30, 2012 at 7:59 am

      Clarify? Who does not have the choice? An employee can choose to work for an employer or not. An employee can choose to go buy contraception. The employer’s choice is what is eliminated.

  6. Lynn on July 30, 2012 at 7:33 am

    Go David! Wish there were more Davids in this country.

  7. sammy22 on July 30, 2012 at 1:07 pm

    The employer could choose to hire only Catholics who do not believe/practice contraception.

  8. dennis on July 30, 2012 at 4:31 pm

    I do not write in too often, but Sammy just made a comment that goes against every employment discrimination law on the books. Any employer who chose to hire only a specific religious group is in violation of ?the law. You cannot be excluded from being hired for a job based on Race, Religion Sex Etc. Like I always?say as Mark Twain said “better to keep silent when thought of as ignorant on a subject than to open ones mouth and remove all doubt”? Liberals should look at what they write and listen to what they say.?

  9. sammy22 on July 30, 2012 at 5:00 pm

    W/o doubt, actions have consequences. At the same time let’s pretend that there is no discrimination in employment. As one can read above, it’s advocated that if one owns a business he should be able to run it the way he likes it.

  10. winnie on July 30, 2012 at 5:13 pm

    Abortion seems to be of governmental interest…therefore, I predict that this small, Catholic, family-owned business will lose its battle in the end.? After all, to fight against paying for your employees’ abortions or contraception based on your religious beliefs is to wage a war on women.

    Maybe they should just drop all insurance coverage and pay the $2000/employee fine?? Wouldn’t that be cheaper in the end and word toward governmental interests?

    • winnie on July 30, 2012 at 5:14 pm

      (*work* toward governmental interests)

    • SoundOffSister on July 30, 2012 at 7:37 pm

      That is exactly what Hercules? Industries will be forced to do by our government. ?Sadly, that is exactly what this administration wants…single payer..to wit: the government takes your money in taxes, “insures everyone”, and provides quality health care to no one, except, of course, the elite leaders.? But, what the hey, we’ll all have insurance.??However, I’m sure our insurance card will look really cool.

    • Dimsdale on July 30, 2012 at 8:34 pm

      Doubtless the card will have a big ZERO on it, but I am not sure if it will represent “the One”, the utter lack of competence of those that conceived this boondoggle, the amount of good quality care you will be able to receive, or the amount of money left to PSS onto our children. ?Or all of the above!

    • winnie on July 31, 2012 at 4:23 am

      But hey, according to O and the democrats (like Fancy Nancy Pelosi) who waltz off into the sunset with their Cadillac plans paid for with our tax dollars, we’ll get to “keep our insurance AND our doctors!”
      My rosy red butt we will (wonder if ocare covers rosy red butt syndrome?).

    • Dimsdale on July 31, 2012 at 8:34 am

      That was “PASS onto our children” above.? I hate virtual keyboards!

  11. sammy22 on July 30, 2012 at 9:58 pm

    Anybody on this blog on Medicare (other than me)? It works for me, and the card is not cool at all. It’s a flimsy paper card, still works.

    • Lynn on July 31, 2012 at 7:56 am

      Well when all of the doctors leave their practices because Medicare doesn’t reimburse them enough for their costs, we’ll see how well Medicare works! My husband has had 3 doctors leave their practices in 5 years, all for more money elsewhere.

    • Dimsdale on July 31, 2012 at 8:36 am

      Seriously, I wonder how much sammy is going to like his Medicare when it is gutted by ?bamacare.? He keeps telling us how much he likes the PRESENT, only partly broken system, not the crumbs he will be left with after 2014.

  12. sammy22 on July 31, 2012 at 11:15 am

    Seriously, Dims, how about we talk sometime about how things are instead of how they might be at some point in the future. So now we have a “partly broken system” not the “best health care system” in the world? That shift in emphasis is at least progress, I think.

    • Dimsdale on July 31, 2012 at 1:28 pm

      We are talking about how they are, i.e. you are saying the present system works great for you.?? As for the “partly broken” statement, it was a reference to the influence of the government into healthcare insurance and a failure overall to simply make the necessary changes without usurping the whole system.
      A shift from “best health care system in the world” to “partly (and eventually) broken” is progressive, not progress.


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