The federal government will challenge a preliminary injunction that Hobby Lobby Stores Inc. won in July that has allowed the company avoid millions of dollars in fines for refusing to cover the cost of some contraceptives for its employees.
Attorneys for the U.S. Department of Health and Human Services filed a notice in federal court in Oklahoma City on Tuesday stating that the government would appeal the ruling to the U.S. 10th Circuit Court of Appeals in Denver.
Kyle Duncan, general counsel for the nonprofit Becket Fund for Religious Liberty, which is representing Hobby Lobby in its court case, said he was puzzled by the appeal.
“What is odd about it that the 10th Circuit has already decided about 99 percent of this case,” Duncan said. “It's difficult to see why appealing that order is an effective tactic.”
The Department of Health and Human Services did not respond to a request for comment on Wednesday.
The U.S. Solicitor General also could decide to appeal the 10th Circuit's earlier ruling on Hobby Lobby's case to the U.S. Supreme Court. The deadline for the government to ask for a Supreme Court review of the case is Wednesday.
U.S. District Court Judge Joe Heaton reluctantly granted Hobby Lobby a preliminary injunction against part of the Affordable Care Act in July while the company's court case challenging the health care law is ongoing.
Hobby Lobby founder and CEO David Green and his family do not want to cover the cost of some types of contraceptives for their employees, including the morning-after pill, because they believe the drugs are a form of abortion, which conflicts with their Christian religious beliefs.
Heaton had earlier denied Hobby Lobby a temporary stay against paying up to $1.3 million a day for failing to extend insurance coverage to its employees to cover the cost of emergency contraceptives, as the Affordable Care Act requires.
However, the judge reversed course after the 10th Circuit ruled that the corporation should be extended the same constitutional rights to religious freedom as individuals.
“We are proceeding on the basis of legal fiction that corporations have the right to exercise freedom of religion,” Heaton said from the bench in July while granting Hobby Lobby the injunction.