ThinkProgress reports this morning that the United States Court of Appeals for the Tenth Circuit has agreed to hear an appeal of an earlier ruling in the lawsuit brought by Hobby Lobby against the birth control benefit in the Affordable Care Act. Last year, a panel of the court denied Hobby Lobby’s request for an injunction against the birth control benefit, which requires that all employer-provided health plans include birth control as a key aspect of preventive care.
Now, as Ian Millhiser notes, the Court has agreed to an unusual nine-judge hearing, which he sees as an ominous development given that such “en banc” hearings normally signal that a majority of the justices in question disagree with the original ruling, and that most of the appointees to this court are conservatives. Millhiser writes:
The court’s decision to hear the case en banc is an ominous sign for women in the workforce. More often than not, courts of appeals agree to hold an en banc hearing only when a majority of the court’s judges disagree with a panel’s previous disposition of a case. Even if that was not the motivation behind this particular decision to en banc this particular case, the fact remains that 6 of the Tenth Circuit’s 10 active judges are Republican-appointees (although one of the Republicans, Judge Jerome Holmes, is recused).
Millhiser further points to two factors at play in these decision. One is the failure of the Obama administration to appoint judges to fill vacancies, and a second is the failure of the Senate to push through real filibuster reform. “Two seats on the Tenth Circuit are vacant,” writes Millhiser, “and President Obama has yet to nominate anyone to fill these seats.”
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Finally, Millhiser examines “how quickly many judges decided they object to the rules when that would have been a fringe position just a few years ago,” and the extent to which they would be overturning precedent by deciding in favor of Hobby Lobby.
For all these reasons, he concludes, “the full Tenth Circuit’s decision to hear the birth control case does not bode well for women’s access to birth control.”