Federal courts of appeals will hear arguments this week in three cases that could frame the coming Supreme Court battle over the birth control benefit in the Affordable Care Act.
On Wednesday, the U.S Court of Appeals for the Seventh Circuit will hear two of the three cases. Last December a split panel of the federal appeals court granted an emergency injunction for Cyril and Jane Korte and their company Korte & Luitjohan Contractors (K&L), a full-service construction contractor based in Illinois. The same court also granted an emergency injunction in the case of Grote Industries v. Sebelius, which involved a privately held Indiana-based business that manufactures vehicle safety systems. Given the similarities between the cases, the court consolidated them, agreeing to hear them together. In both cases the for-profit businesses were granted injunctions from having to comply with the mandate. But that’s not what is noteworthy about these two cases. What’s noteworthy is that those injunctions were granted over the searing dissent of Judge Ilana Diamond Rovner, whose methodical deconstructing of the claim that for-profit businesses have religious liberty interests sufficient to deny their employees access to contraception via their insurance coverage illuminates what’s really going on in the battle over the birth control benefit.
In the legal battle over the contraception benefit, conservatives see a chance to radically re-define the nature of religious liberty in the United States and to provide broad protections from obeying the law for businesses. It’s a dangerous combination of religious extremism and corporate extremism, which Circuit Judge Rovner laid bare last February. Now the appeals court is going to have another look.
The other high-profile appellate argument happening this week is in Hobby Lobby v. Sebelius. Hobby Lobby, a for-profit arts-and-crafts store has become something of a celebrity cause for conservatives challenging the contraception benefit. Last year a panel of three Tenth Circuit Court of Appeals judges refused to grant Hobby Lobby’s request for an injunction. Hobby Lobby sought emergency intervention from the Supreme Court, but that request was denied. Then, in an unusual move, the full Tenth Circuit agreed to hear the case en banc, which can mean that a majority of the judges on the panel disagree with the earlier decision. If that is the case, and the full panel reverses the earlier decision, Hobby Lobby would be granted an injunction while the lawsuit challenging the constitutionality of the mandate proceeds. Those arguments take place on Thursday, May 23.
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At the rate the legal challenges to the mandate are piling up—at last count there were 63 lawsuits pending in federal courts—the Supreme Court could decide the issue by 2014. Of those 63 cases, 32 cases have been brought by non-profit organizations. Three cases were withdrawn by the plaintiffs, while eight cases were dismissed and those decisions were not appealed, leaving 21 of the non-profit cases pending. Where decisions have been reached in the non-profit cases, courts are largely dismissing the cases because they are not ripe or because plaintiffs lack standing. This is because non-profits with religious objections to providing contraceptive coverage currently have a one-year delay in implementing the benefit while the administration finalizes the rule defining the scope of religious exemption under the birth control benefit.
Almost as many cases have been filed by for-profit companies, with 31 challenges filed by businesses ranging from a mining company to an HVAC company to a furniture manufacturer and a property management company. These cases are moving quickly because these companies are not eligible for the delay in complying and for the most part are already required to provide the contraceptive coverage benefit.
The courts addressing these challenges are reaching different outcomes, all but guaranteeing Supreme Court review. In these challenges, so far one court has reached the merits, granting the government’s motion to dismiss in O’Brien v. HHS, which is now on appeal to the Eighth Circuit Court of Appeals. There, the district court recognized that the Religious Freedom Restoration Act, the federal law the companies are relying upon to challenge the benefit, “is not a means to force one’s religious practices upon others.” The Eighth Circuit Court of Appeals has issued a stay pending appeal.
So far no court of appeals has reached the merits of the challenges yet. Three courts of appeals (the Third, Sixth, and Tenth) have refused to delay the enforcement of the contraceptive coverage benefit while three courts of appeals (D.C., Seventh and Eighth) have given temporary relief. This means there’s a patchwork of contradictory results blanketing the country, with some of the federal courts nearly evenly split on whether for-profit companies can avoid providing contraceptive coverage for their employees. It also means there’s an increasingly likely chance the Roberts court will end up taking up challenges to Roe v. Wade’s viability standard nearly the same time it considers the religious rights of employers to deny health insurance benefits to employees. If that happens, 2014 could be the year the Roberts court does to reproductive rights law what it did to campaign finance law in 2010 with Citizens United.