Analysis Law and Policy

First Appellate Arguments On Birth Control Benefit Suggest Long Fight Ahead

Jessica Mason Pieklo

A D.C. appellate court appears ready to let the first round of legal challenges to the contraception mandate survive.

The first legal challenge to the birth control benefit reached the appellate courts last week, leaving almost no doubt the issue of whether corporate entities can exercise religious rights that supercede women’s health care will find its way before the Supreme Court in a year or two.

Judges on the D.C. Circuit Court of Appeals heard arguments in both Wheaton College and Bellmont Abbey College, two of the first plaintiffs to challenge the mandate. Lower courts dismissed both challenges as premature, holding that since the Obama administration is still working on additional accommodations to address concerns about “religious liberties,” groups would have to wait until that was over before brining their claims.

The plaintiffs appealed, arguing that despite the fact that the Obama administration extended a “safe harbor,” they are already being harmed by the mandate since they face the threat of potential lawsuits from their employees should they fail to offer insurance plans that cover contraception without a co-pay.

The central issue of the appeal is not so much should the cases move forward, but when will they move forward? One option for the court is to affirm the lower court and dismiss the challenges on the grounds that the safe harbor and forthcoming accommodation must first happen before any legal challenge can move forward. The plaintiffs would then wait for that to happen and re-file their lawsuit, after exhausting any possibility of Supreme Court intervention first of course. Or the court could reverse the lower court and find the challenge should move forward based on the contraception coverage rule as issued. Finally, the appellate court could decide to order the cases go back to the district court and wait for the administration to issue its final rule, at which point the plaintiffs then resume their legal challenges.

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This final option is probably the most attractive though procedurally cloudy option the appellate court has before it. Sending the challenges back to the lower courts and hitting the pause button, effectively, allows the administration time to finalize the rule. And courts like finality in rules because it means, usually, the courts will all be analyzing the exact same law which, for the development of precedent and the sake of judicial efficiency, is important.

The problem is that this option allows the argument that corporate entities have the ability, let alone the constitutional right, to express religious beliefs in a way that discriminates against others to survive and suggests this is a legal issue in doubt. And thanks to a steady pace of conservative judicial appointments, there are at least a handful of judges willing to entertain this argument. As with the fight for abortion rights, the religious right will use every opportunity it can to slide the framing in a legal dispute in its direction. Historically that’s meant flooding courts with hundreds of copy-cat claims as a way to saturate the legal dialogue around abortion. It’s a tactic that’s worked before. Will it work again?

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