News Law and Policy

Colorado District Court Blocks Contraception Mandate for Secular, For-Profit Nursing Home Business

Jessica Mason Pieklo

The fight over the contraception mandate picks up steam as another for-profit business succeeds in temporarily evading the law.

For-profit secular corporations seeking to avoid compliance with federal health-care regulations got another win in court, this time in Colorado, as a federal district court granted a preliminary injunction blocking enforcement of the Affordable Care Act’s contraception benefit with respect to four contraceptive methods.

The plaintiffs—Continuum Health Partnerships; Continuum Health Management, LLC; Mountain States Health Properties, LLC; and the evangelical Christian owner of the related companies, Stephen W. Briscoe—manage and operate senior-care assisted living centers and skilled nursing facilities. The plaintiffs offer a self-insurance plan to their over 200 employees and claim to have religious objections to contraceptive methods they believe operate as abortifacients. Specifically, they object to coverage for four FDA-approved contraceptive methods: “(1) Ella; (2) Plan B, Plan B One-Step, and Next Choice (Levonorgestrel); (3) the Copper IUD; and, (4) the IUD with Progestin.”

Last February, the district court refused to grant a temporary restraining order in the case, concluding the plaintiffs had not shown a substantial likelihood of success on the merits of their claims. However, subsequent to the court’s earlier ruling denying an injunction to the plaintiffs, the Tenth Circuit Court of Appeals, “en banc” (the entire court), decided the Hobby Lobby case, holding that corporations have free exercise rights and that the contraceptive coverage mandate substantially burdened those rights without a compelling governmental interest. Relying on this holding, the district court here granted the renewed motion for an injunction.

Opponents to the contraception benefit filed over 70 federal lawsuits challenging the rule. To date, over 40 of those legal challenges have been brought by secular, for-profit businesses, including three new cases filed in the district court for the District of Columbia. The D.C. Court of Appeals is widely believed to be the second most powerful court in the country, behind the U.S. Supreme Court, and often hears cases that wind up before the high court.

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The chances of the Supreme Court taking up the issue of whether or not secular, for-profit businesses have religious rights is all but given. Currently, there’s a split in the circuit courts between the Third Circuit and the Tenth Circuit “en banc” decision in Hobby Lobby v. Sebelius. The courts differ on the question of whether a for-profit company can exercise religious beliefs with the Third Circuit holding that such companies cannot, while the Tenth Circuit in Hobby Lobby said they can.

The federal government must decide by September 25 whether to seek an appeal in Hobby Lobby. The lawyers for Conestoga Wood Specialities Corporation, the party to the conflicting decision from the Third Circuit, said they intend to seek an appeal in the Supreme Court and have until November 12 to do so. If both cases are appealed, the Supreme Court will decide which case, if any, to take. The Supreme Court could also decide to take both cases.

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