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“If we are successful in striking down the employer mandate, it will benefit both religious and nonreligious employers,” the university said in an announcement. “The petition will also include the claim that the forced funding of abortion violates the free exercise of religion and the Religious Freedom Restoration Act with respect to individuals.”

Mat Staver, founder and chairman of Liberty Counsel, which is representing Liberty University, said he’s glad the court “reached the merits on the employer mandate, even though the court got it wrong, because this clears the way for the case to now go to the Supreme Court.”

“The Supreme Court concluded that the individual mandate cannot be upheld under the Commerce Clause because Congress cannot force people to buy an unwanted product,” Staver said. “But this court of appeals has now decided that Congress can force employers to buy an unwanted product. As Congress cannot force individuals to buy an unwanted product, neither can it force employers to do so. I look forward to having this matter before the Supreme Court.”

The appeals court agreed with Liberty Counsel on the procedural issues raised, that the school and individual plaintiffs have legal standing to bring the case and that the Anti-Injunction Act does not interfere.

The 4th Circuit judges found a stunning reason for its decision to turn down Liberty’s appeal, however, stating, “Plaintiffs present no plausible claim that the act substantially burdens their free exercise of religion, by forcing them to facilitate or support abortion or otherwise.”

There have been dozens of lawsuits against the government over that very requirement and multiple decisions by federal judges that the government cannot enforce those provisions until the full legal argument is played out.

Liberty Counsel explained: “Unlike the individual mandate, the employer mandate exceeds Congress’ enumerated powers because it would impose a heavy burden upon employers. The penalties, which can be up to $15,000 per day per employee, are so punitive that they will not be upheld under the Taxing and Spending Clause. This refusal will result in millions of dollars in fines annually. These excessive fines constitute an impermissible penalty.”

On the first trip to the Supreme Court, the justices determined Obamacare was a legitimate tax, including its abortion-funding mechanisms.


While the Supreme Court last year ruled on Obamacare, it left several of the questions about the program unanswered. Liberty University said it had a right to have those litigated, and the Supreme Court agreed, resulting in the pending case.

Liberty Counsel said this challenge to Obamacare is the most comprehensive case pending because it challenges the employer mandate that companies must provide abortifacients or pay a penalty, the abortion mandate for religious employers, the abortion mandate for individuals and the entire law because tax bills must originate in the House.

“Obamacare represents a frontal attack to religious freedom. Obamacare is a train about to collide with the fundamental right to free exercise of religion,” Staver said earlier in the battle. “Not only does Obamacare violate the rights of religious employers because of its abortion mandate, it violates the rights of individuals who oppose abortion and the rights of all employers, religious or not.”

Liberty Counsel told the court that because Obamacare was classified as a tax, it violates the Origination Clause of the Constitution, which requires all tax laws to originate in the House.




Staver earlier explained that the whole argument changed when the Supreme Court ordered the 4th Circuit to consider the case.



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