A pair of Madison County business owners suing the federal government has taken its religious fight over the Affordable Care Act (ACA) to the U.S. Court of Appeals for the Seventh Circuit.

Cyril and Jane Korte, owners of Korte & Luitjohan Contractors (K&L) in Highland, on Dec. 18 filed an emergency motion for an injunction pending appeal in the federal appeals court.

That motion came four days after a district court judge denied their request for a preliminary injunction and two weeks before the Kortes have to renew K&L’s group health plan.

The Kortes in October sued three federal agencies, as well as their respective heads, claiming the ACA’s “final rule” violates the Religious Freedom Restoration Act (RFRA) and the Free Exercise, Establishment and Free Speech clauses of the First Amendment.

Among other requirements, this rule requires employers to provide employee health benefit plans that include coverage for contraceptives; something the Kortes assert goes against their beliefs as devout Catholics.

The mandate, they claim, puts them in the position of having to comply with something that violates their religious beliefs or pay fines that they allege “would have a crippling impact on their ability to survive economically.”

In a 22-page memorandum and order issued Dec. 14, U.S. District Judge Michael Reagan denied the Kortes’ request for a preliminary injunction. He heard oral arguments over the matter Dec. 7.

The Kortes, he wrote, “failed to show a reasonable likelihood of success on the merits of either their Free Exercise Clause or RFRA claims, which is necessary to secure a preliminary injunction.”

In their emergency motion for an injunction pending appeal to the Seventh Circuit, the Kortes assert that without such relief, they and their family business “will be forced to make a stark and inescapable choice just days from now, on January 1, 2013:” to go against their beliefs or face fines from the government.

To bolster support for their request, the Kortes cite a Nov. 28 ruling from the federal appeals panel for the Eight Circuit that granted a for-profit plaintiff’s motion for an injunction pending appeal over the mandate (O’Brien v. U.S. Department of Health & Human Services).

The federal government, however, argues in its Dec. 21 response to the emergency motion that Reagan’s ruling should be affirmed.

Pointing out that K&L currently offers contraceptive coverage in its group health plan, the government asserts that an emergency injunction would essentially allow the plaintiffs to terminate current coverage.

“There is no basis for this extraordinary demand,” the government argues. “The purpose of an injunction pending appeal is to preserve the status quo, not to eliminate existing employee benefits.”

The Kortes contend that providing that coverage was an error discovered in or about August.

They are “investigating ways to obtain a group plan that complies with” their Catholic faith, but time “is running short” as the plan renewal date for K&L’s health plan is Jan. 1.

Edward White with the American Center for Law & Justice in Michigan represents the Kortes.

Mark Stern and Alisa Klein, attorneys in the civil division of the U.S. Department of Justice, represent the defendants.

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