On Wednesday a three-judge panel of the Eighth Circuit Court of Appeals issued the first appellate court order blocking the birth control benefit in Obamacare as anti-choice activists do their best to fast-track the issue for Supreme Court review.
The decision came from an appeal in the case of Frank R. O’Brien and O’Brien Industrial Holdings, a for-profit holding company based in St. Louis that explores, mines and processes refractory and ceramic raw materials around the world. In October, a federal district judge dismissed O’Brien’s lawsuit, rejecting “the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.”
O’Brien immediately appealed the dismissal and also asked the appellate court to block the mandate from taking effect while that appeal moved forward. On Wednesday the appeals court agreed 2-1 to do so.
Like similar rulings at the district court level in other challenges to the contraception mandate, Wednesday’s decision only pertains to the parties to the lawsuit. It’s a disappointing development in what had been the most decisive judicial victory yet on the birth control benefit, but it is not a surprising one. The Eighth Circuit is a more conservative appellate circuit and requests for emergency relief preventing a law from applying to a party while an appeal on the merits is pending are common.
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The administration could ask the full Eighth Circuit to review the panel’s order for an injunction. If they do not, or if such a request is denied, then at least one secular, for-profit employer will have been in effect granted immunity by the federal courts from complying with the law under the auspices of religious freedom.