Business owners still seek mandate relief after wins

| Susan Klemond | March 29, 2016 | 0 Comments

As the Little Sisters of the Poor hope the U.S. Supreme Court will exempt them from having to include contraceptive, abortifacient and sterilization coverage in their employee health insurance plans, two local Catholic business owners who fought the Department of Health and Human Services mandate and won last year say they still are unable to offer their employees health insurance.

Tom Janas

Tom Janas

Businessmen Stuart Lind and Tom Janas hope that a win for the Little Sisters would also grant relief for
for-profit companies.

“My goal with the lawsuit was simply to be able to offer health insurance to my employees that does not contain any contraception or abortion coverage,” Lind said. “I still can’t do that today, so it really doesn’t feel like a victory at all.”

Moral objections

Lind’s objective is to resume health insurance coverage he had to stop because of the mandate for the 21 employees at his Minnetonka-based medical device company, Annex Medical. Lind, like the Little Sisters, rejects the HHS “accommodation” in which he is asked to notify the government of his moral objections so that the government would order the issuer of his company’s health plan to provide the coverage.

Lind and Janas, along with a Houston, Texas-based owner of a Minnesota company, have had different outcomes since their victories following the June 2014 Supreme Court decision in favor of Hobby Lobby Stores when the court ruled that “closely held” for-profit companies may assert rights to oppose the mandate under a 1993 federal law protecting religious freedom.

HHS introduced the mandate in 2011 as part of the Affordable Care Act.

Because the business owners each have fewer than 50 employees, the ACA doesn’t require them to provide health insurance. While they oppose the mandate because it violates Church teaching, they consider providing health insurance part of their responsibility as Catholic employers.

The business owners may not have won complete exemption from the mandate through their cases, but the government has been ordered to pay their legal fees, said Erick Kaardal of the Minneapolis law firm, Mohrman, Kaardal & Erickson, P.A., who has represented the three, along with plaintiffs in five of the six other Minnesota HHS mandate cases. In Minnesota, “we’ve had eight victories against the federal government,” said Kaardal, a parishioner at St. Mark in
St. Paul. “We’ve redeemed the system.”

Lind, who belongs to All Saints in northeast Minneapolis, said he compensates his employees for the lack of insurance. The mandate and related changes have been time consuming, he said, adding that without health insurance, it’s harder to recruit employees.

But he sees the challenge as an opportunity to stand up for his faith.

“It’s not that I am a businessman most of the time and sometimes my faith takes over,” he said. “Every single decision I make when I’m at work is made with the goal of pleasing God.”

Janas, a member of St. Maximillian Kolbe in Delano, sold two businesses, in part to avoid the mandate. He bought his current dairy barn equipment business, Storms Welding and Manufacturing of Cologne, more than two years ago. After receiving from the court a permanent injunction against the mandate in 2015, he met with insurance agents, but none would write a contraceptive-free policy, partly because he has only 16 employees.

Unable now to offer a plan, Janas, like Lind, gives employees a stipend toward their health insurance and has considered private health insurance and a health insurance cooperative.

Deacon Hall

Deacon Hall

To avoid the mandate, Deacon Greg Hall, a permanent deacon in the Archdiocese of Galveston-Houston, considered buying more expensive private insurance for the 30 employees of American Manufacturing, based in St. Joseph, Minnesota. But his insurance provider agreed to amend his plan to exclude the contraceptive coverage.

In 2010, Deacon Hall’s company, which makes mud pumps and parts, provided equipment for the rescue of 33 miners trapped in a collapsed Chilean mine, the subject of the recent film, “The 33.”

“Going through the Chilean mine rescue was being in God’s hands,” he said. “When we were able to save 33 men in an impossible situation, that is really what gave me and my wife strength to take on the federal government.”

Concerns across the country  

Whatever the outcome of the consolidated case brought by the Little Sisters and other religious nonprofits, legal experts say it likely will have important ramifications for religious freedom.

Nationwide, 50 for-profit and 56 nonprofit lawsuits have been filed against the mandate. There are no

Minnesota nonprofit cases, according to the Washington-based Becket Fund for Religious Liberty, a non-profit, public-interest law firm protecting religious expression that represents a number of mandate plaintiffs, including the Little Sisters of the Poor.

On March 23, the Supreme Court heard oral arguments in the case involving the Little Sisters, Bishop David Zubik of Pittsburgh, East Texas Baptist University, Geneva College, Southern Nazarene University, Priests for Life, the archbishop of Washington and other plaintiffs.

In 2013, the Supreme Court granted the Little Sisters temporary relief from the mandate. The sisters have now asked the court for protection from the accommodation. If they lose their case and don’t comply, they will face $70 million in IRS fines, according to the Becket Fund.

The plaintiffs’ lawyers argued before the court that one-third of American employees don’t have contraception coverage because corporations including Visa, Exxon and Pepsi aren’t required to comply with the mandate. They also argued that the government can provide artificial birth control directly through its ACA health insurance exchanges.

A 4-4 court decision would go against the nonprofit plaintiffs, but a win could mean for-profit relief as well, said Thomas Mathews of the St. Cloud law firm Hughes Mathews Greer, P.A., one of the attorneys representing Deacon Hall.

Depending on the court’s expected June 30 ruling, Kaardal said he and his clients may sue over the accommodation.

“If the Supreme Court goes our way, then all these things will be resolved in our favor,” he said. “If it goes south on us, we’re going to have problems.”

Janas hopes a Little Sisters win and a new U.S. president will result in changes to the mandate, enabling him to find a plan that he believes truly benefits employees’ health.

Regardless of the outcome, Deacon Hall said, “Our faith compels us. As [St.] Augustine says, right is right even when no one’s doing it, and wrong is wrong even when everybody’s doing it.”

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