"Denying a stay while awaiting a petition for cert is not unusual, but it is unusual that conflicting orders are sent on the subject," Mat Staver, founder and chairman of Liberty Counsel, said in a press release.
If the stay had remained in place, Liberty University would not have had to implement the birth control mandate on Jan. 1 while it waits to have its lawsuit resolved by the courts.
Liberty University's lawsuit is the most expansive current challenge to the Affordable Care Act, or "Obamacare." It addresses the mandates that most employers provide health insurance, that those insurance plans cover abortifacients, and that individuals have insurance that covers abortifacients. Plus, the suit challenges the entire law based upon the fact that the Supreme Court ruled that Congress' authority to implement the individual mandate came from its taxing power, but the Constitution requires that tax bills originate in the House while the ACA originated in the Senate.
Last month, the Fourth Circuit rejected Liberty's claim that the employer mandate violated the Constitution. Congress has the authority, the Court said, to require that employers provide health insurance to its employees under the Commerce Clause, which says that Congress can regulate commerce among the states. Liberty will appeal that decision to the Supreme Court.
This week's Fourth Circuit decision, and reversal decision, will not impact Liberty's efforts to get the Supreme Court to hear its case, Staver added.
"The conflicting orders from the court of appeals do not have any relevant bearing on this case," he said. "We are preparing the petition to ask the Supreme Court to review the case."
While there are currently 65 cases with over 200 plaintiffs challenging the HHS mandate, or birth control mandate, Liberty's case is the only one in the nation challenging the employer mandate.
Liberty believes the Supreme Court will strike down the employer mandate because it has already denied that the Commerce Clause justifies the individual mandate and the tax penalties are unreasonable.
"If we are successful in striking down the employer mandate, it will benefit both religious and nonreligious employers," Staver added.