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Missouri Family E-News

November 5, 2013

Federal Judge Slaps Down Abortion Drug Lawsuit  


A federal district judge has dismissed a lawsuit filed by a Missouri legislator which challenged the Obama Administration's contraceptive and abortion drug mandate.


U.S. District Judge Jean Hamilton rejected the legal challenge filed by State Representative Paul Wieland of Imperial, and his wife Theresa.


Wieland contended that the abortion drug mandate violated his religious freedom, forcing him and his wife to accept health care coverage which is "directly at odds with their religious beliefs and practices."


The Wielands further argued that the mandate interfered with his right to raise his daughters according to "Catholic principles." 


That mandate, ordered by Health and Human Services Secretary Kathleen Sebelius, requires that every health insurance policy issued in the United States must cover any and all "contraceptives" approved by the Food and Drug Administration.  That includes so-called "morning-after pills" such as Ella and Plan B, which function as abortifacients.


Wieland filed the suit after he learned that his legislative health insurance policy with the Missouri Consolidated Health Care Plan (MCHP) would now include contraceptive and abortion drug coverage.   


Judge Hamilton ruled that Wieland and his wife lacked standing to bring the lawsuit, and thus had no basis for seeking a temporary restraining order.


Hamilton said that Wieland's "injuries are linked with the independent discretionary actions of the State and MCHP, who were not parties to the lawsuit."  She further stated that there was "only indirect causation between the Mandate and their alleged injuries."


These statements by Judge Hamilton are either deliberately fallacious, or reflect a judge who lacks the intellect to understand the unmistakable contours of the Sebelius edict.  The mandate is a mandatory component of the "essential benefits package" of every health insurance plan.


The State of Missouri and the Missouri Consolidated Health Plan have no discretion in the matter, and have no independence to deviate from its enforcement.


In related news, yet another federal appeals court has ruled that the contraceptive and abortion drug mandate violates religious liberty.  The District of Columbia Circuit Court of Appeals issued a preliminary injunction prohibiting enforcement of the mandate against Francis and Philip Gilardi of Sidney, Ohio.


The Gilardis own Freshway Foods and Freshway Logistics.  As devout Catholics, they argued that the mandate infringes on their right to the free exercise of religion.


A panel of the D.C Circuit ruled 2-1 that the Gilardis were entitled to relief from the mandate.  "They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong," wrote Judge Janice Rogers Brown.


In early October a three-judge panel of the Tenth Circuit Court of Appeals also enjoined enforcement of the mandate against a Colorado-based firm.


The Tenth Circuit ruled in favor of Hercules Industries, an HVAC manufacturer in Denver.  The company is owned by the Newland Family, who also are committed Catholics.


The HHS mandate continues to falter in the eyes of the federal judiciary. According to the Alliance Defending Freedom, there have now been a total of thirty-three federal court decisions suspending enforcement of the mandate against aggrieved parties.  Only five federal court decisions have been rendered upholding the mandate.


One of those, the Conestoga Wood case, has been appealed to the U.S. Supreme Court.  The Third Circuit Court of Appeals had ruled that the Pennsylvania cabinet maker must comply with the mandate.  Conestoga Wood is owned by members of the Mennonite faith.


The Obama Administration has also appealed a previous Tenth Circuit ruling in favor of the craft store chain Hobby Lobby.    


Legal observers expect that the Supreme Court will agree to hear these cases, and render an ultimate judgment on the constitutionality of the Sebelius edict.   




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Mo. Supreme Court Affirms Marriage in Retirement Ruling 

The Missouri Supreme Court has upheld a Missouri law that provides benefits to the surviving spouses of deceased public safety officers.  A St. Louis area man had challenged the law, claiming that it discriminated against him based on his "sexual orientation."

The lawsuit followed the death of Corporal Dennis Englehard, a state highway patrol trooper who was killed in the line of duty on Christmas day of 2009 while assisting a motorist on Interstate 44.  Kelly Glossip maintained that he had cohabited with Englehard for fifteen years as his same-sex "partner." Glossip argued that he should be accorded survivor's benefits because they had a "committed, marital relationship."

Corporal Englehard was a member of the Missouri Transportation Department Employees' and Highway Patrol Retirement System.  Under that system, survivor's benefits are payable to a surviving spouse or surviving unemancipated children under the age of 21. All state employee pension programs operate under similar provisions.

Missouri retirement statutes specify that a "spouse" must be a party to a legal union between a man and a woman.  Missouri's Constitution furthermore provides that the only marital unions "valid and recognized" in the state are those existing between a man and a woman.  State law further stipulates that "any purported marriage not between a man and a woman is invalid."

Glossip alleged that the survivor benefits law violated the equal protection clause of the Missouri Constitution in that it denied him benefits based on his "sexual orientation."  In a 5-2 decision, the Missouri Supreme Court rejected his claim.  The state's high court upheld the right of the Missouri General Assembly to "award and deny survivor benefits based on whether the claimant was married to the patrolman at the time of death."

The Supreme Court concluded, as the law plainly states, that Glossip was denied benefits not because of his "sexual orientation," but because he and Englehardt were not married.  "The survivor benefits statute does not discriminate on the basis of sexual orientation.  Instead, it draws a distinction on the basis of marital status."

The judges correctly pointed out that all unmarried "couples" are ineligible for survivor benefits regardless of whether they are of the same or opposite sex. 

In their decision, the Supreme Court determined that the statute was subject to review under a "rational basis" test.  Under that standard of review, the Court concluded that the survivor benefits law bore a "reasonable relation to legitimate state interests."

"Providing survivor benefits to persons who are economically dependent on a deceased state employee is a legitimate state interest, and the General Assembly could have reasonably concluded that the spousal requirement would serve that purpose.  The General Assembly could reasonably conceive that there might be a greater incidence of economic interdependence among married couples than among unmarried couples," the opinion reads.

Attorneys for Glossip had pointed to the recent Supreme Court decision in United States v. Windsor, where the High Court ruled that federal benefits must be payable to same-sex "spouses" when they have been legally "married" in the state in which they reside.  The Missouri Supreme Court rightly determined that that case was irrelevant, since Glossip and the state trooper had never been legally "married" in Missouri or in any other state.

While the decision of the court majority is not attributed to any single author, it was joined by Chief Judge Mary Rhodes Russell, and Judges Patricia Breckenridge, Zel Fischer, Laura Denver Stith, and Paul Wilson.  Judge Richard Teitelman filed the dissent, which was joined by Judge George Draper.

In his dissent, Teitelman makes the implausible declaration that the statute was designed to "specifically discriminate against gay men and lesbians by categorically denying them crucial state benefits..."  He accused the Missouri Legislature of engaging in "intentional, invidious, and specifically targeted discrimination."

This is a reckless, ludicrous, and wholly unsubstantiated pronouncement.  The Highway Patrol Retirement System was established by the General Assembly in 1955.  The subject of homosexuality was not even a subject of discussion, because noone would have envisioned at the time that homosexuals could be legally "married," since it contradicts the very meaning of the term.

Had Teitelman's thinking prevailed in the Supreme Court, state retirement trustees would have been left with the impossible task of evaluating the nature and duration of relationships between cohabiting individuals and live-in "lovers."  How state retirement officers would have determined the depth of emotional attachment and level of intimacy between cohabiting "couples" as a threshold for benefits eligibility is anybody's guess.

We want to commend the office of Attorney General Chris Koster for defending the retirement statute in credible fashion.  Our thanks go to attorneys James Ward and Emily Dodge for their capable defense of the purpose and significance of marriage in survivor's benefits law.

You can thank them by sending e-mails to them at these addresses:

P.S.  It is noteworthy that while Glossip did not succeed in establishing his demand for a taxpayer-funded state pension, he did receive about $150,000 from a federal fund designated for the survivors of deceased law enforcement officers

P.P.S.  The State of Missouri honored Corporal Engelhard, as it has other fallen state troopers, by designating a section of Interstate 44 as the Corporal Dennis Engelhard Memorial Highway.

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