AP Plays Guilt by Association (With Bain!), Gives Sotomayor a Pass in Covering Federal Judge's Contraception Mandate TRO

December 31st, 2012 3:50 PM

An unbylined Associated Press story at 1:34 p.m. (saved here for future reference, fair use and discussion purposes) disgracefully covered a federal ruling which delivered a defeat (for now) against the enforcement of ObamaCare's contraception mandate.

Unlike the Hobby Lobby situation (covered earlier today at NewsBusters; at BizzyBlog), where the dispute is over certain portions of the contraception mandate requiring employers to cover abortifacient drugs and devices, the ruling in the case of Thomas Monaghan, the founder of Domino's Pizza who is now has a property management business, involves the entire contraception mandate. Monaghan nevertheless was able to get a temporary restraining order (TRO). The full five-paragraph AP report is after the jump (bolds are mine throughout this post):


A federal judge has ruled a property management company owned by the founder of Domino's Pizza doesn't have to immediately implement mandatory contraception coverage in the health care law.

U.S. District Judge Lawrence Zatkoff ruled Sunday in favor of Tom Monaghan and his Domino's Farms Corp., near Ann Arbor. Monaghan, a devout Roman Catholic, says contraception isn't health care but a "gravely immoral" practice.

Zatkoff granted Monaghan's emergency motion for a temporary restraining order until a final decision is made in the case. The mandate would have taken effect Tuesday.

The government says the contraception mandate benefits women's health and removes financial barriers. There are about a dozen similar lawsuits pending nationwide.

Monaghan sold most of his controlling stake in Domino's Pizza in 1998 to private equity company Bain Capital.

Seriously, guys. You really needed to mention who bought control of Domino's from Monaghan 14 years ago, as if that has any relevance to anything in the current matter (which it of course doesn't)?

The 2012 presidential election campaign is over. You don't need to bring up Mitt Romney's former firm in every conceivable situation which might somehow by twisted leftist logic I fail to comprehend make Bain or others associated with it look bad.

The press releaes from the not-for-profit, Monaghan-founded and supported Thomas More Law Center even emphasizes Monaghan's 14-year lack of active involvement with Domino's Pizza; but AP went ahead anyway and decided it was important enough to merit a mention, while ignoring an important core issue (to be discussed):

Federal Judge Grants Tom Monaghan Emergency Request; Halts Government Enforcement of HHS Mandate

The Thomas More Law Center (TMLC), a national public interest law firm based in Ann Arbor, Michigan, announced that yesterday (12/30/12) Federal District Court Judge Lawrence P. Zatkoff of the Eastern District of Michigan, granted its Emergency Motion for a Temporary Restraining Order of the HHS Mandate.  The motion was filed on behalf of Tom Monaghan.

Judge Zatkoff’s ruling effectively halts enforcement of the HHS mandate against Monaghan and his property management company, Domino’s Farms Corporation of which he is the owner and sole shareholder. Domino’s Farms Corporation manages an Office Complex owned by Monaghan and is not to be confused with Domino’s Pizza.  Monaghan sold the Pizza company in 1998 and has no active affiliation with it at this time.

The HHS mandate refers to regulations adopted by the Department of Health and Human Services that forces employers, regardless of their religious convictions, to provide insurance coverage for abortion-inducing drugs, sterilization, and contraception under threat of heavy penalties.

Click here to read Judge Zatkoff’s entire opinion.

Erin Mersino, TMLC’s lead counsel on the case filed the original complaint for Declaratory Judgment and Injunctive relief on December 14, 2012.  On December 21, 2012,   Mersino filed the Emergency Motion for Temporary Restraining Order.

Judge Zatkoff issued his ruling amid a flurry of briefs and supplemental pleadings over the Christmas Holiday between Erin Mersino and the Government’s attorney.  The need for quick resolution was clear—on January 1, 2013, Tom Monaghan would be forced to choose between violating his religious beliefs and violating federal law.

For purposes of the emergency Motion, Judge Zatkoff focused only on the claim brought under the Religious Freedom Restoration Act.  He held he did not need to engage in a separate discussion of Plaintiffs’ Constitutional right to the Free Exercise of Religion since both theories seek to protect the same liberty interest—the free practice of one’s religion.

The Government is expected to appeal Judge Zatkoff’s ruling. ...

The full ruling's text makes it clear that Judge Zatkoff understood the emergency nature of Monaghan's restraining order request while making other important legal points:

Courts, however, may grant a preliminary injunction even where the plaintiff fails to show a strong or substantial probability of success on the merits, but where he at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if the injunction is issued.

... it is sufficient for the Court to find that Monaghan may bring a claim under the RFRA based on his argument that the mandate requires him to perform an act that is at odds with his religious beliefs.

... Monaghan asserts that acting to have his company provide such coverage would cause him to commit a grave sin according to his (Catholic) religious beliefs. This argument is well-taken, since DF cannot act (or sin) on its own.

... The Supreme Court has held that “putting substantial pressure on an adherent to modify his behavior and to violate his beliefs” substantially burdens a person’s exercise of religion.

In sum, Zatkoff is saying: 1) Monaghan didn't have to prove his case to get his TRO; 2) He has a right to argue his case based on the Religious Freedom Restoration Act (RFRA); 3) Monaghan has a strong argument that compliance on even a temporary basis would cause harm; and 4) The Supreme Court has in essence previously said that courts should not do anything which "burdens a person’s exercise of religion" until matters are finally settled. If forcing one to choose between $200,000 per year in fines (plaintiffs' estimate based on ObamaCare's rules and regulations) and violating one's religious beliefs isn't "substantial pressure," I don't know what is.

Critically, AP has thus far failed to question why Supreme Court Justice Sonia Sotomayor refused to grant a TRO to Hobby Lobby, which is only questioning a portion of the contraception mandate and not its entirety, and which faces fines amounting to $1.3 million per day.

Judge Zatkoff's points are so obvious that one is left wondering what other motivations are behind why Sotomayor ruled as she did. After all, if forcing one to choose between $1.3 million in daily fines and violating one's religious beliefs isn't "substantial pressure," I don't know what is. An agenda outside of the law would appear to be the only reasonable explanation for Sotomayor's decision. One would hope that AP and others in the establishment press will note the stark contrast, but I suspect that is a completely vain wish.

AP may improve itself in subsequent revisions, but the damage involved in failing to get it right when the news breaks and instead indulging its perverse Bain fetish is done. Subsequent revisions won't get as much attention, especially in broadcast reports.

Cross-posted at BizzyBlog.com.