While the Supreme Court considers the question of whether or not for-profit, secular companies can use the Religious Freedom Restoration Act and the First Amendment to avoid complying with the contraception coverage requirement in the Affordable Care Act, dozens of other legal challenges to the birth control benefit march on in the federal courts.
Those challenges have been filed primarily by religiously affiliated nonprofit organizations that claim the process for opting-out of contraception coverage under the law’s exemption for some religiously affiliated entities unduly burdens their religious rights. The rule allows a nonprofit that holds itself out as religious and has religious objections to birth control to refuse to cover it, by self-certifying under a form filed with the federal government. That self-certification acts as a trigger for independent insurance providers to provide contraception coverage for the nonprofit’s employees or anyone else covered by the nonprofit’s benefits’ package. So far, 34 nonprofits have sued, arguing that exemption process is not sufficient, and of those cases 20 are pending in some way in federal appeals courts across the country.
A couple of things stand out when looking at the full list of legal challenges to the birth control benefit filed by nonprofits. First, it is clear that the Tenth Circuit Court of Appeals is increasingly becoming an important jurisdiction for conservatives. The Tenth Circuit includes the federal courts located in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. While it has a reputation as a conservative jurisdiction generally, the Tenth Circuit more recently has shifted from being merely a reflection of conservative influences in the Western Plains and mountain states to being clearly ideologically opposed to reproductive rights and equality, as recent decisions upholding Kansas’ Planned Parenthood funding ban and Hobby Lobby demonstrate. Currently three nonprofit challenges are pending before the Tenth Circuit, including Little Sisters of the Poor, a case that has already made one brief appearance before the Roberts Court.
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To the west of the Tenth Circuit is the more reliably liberal U.S. Court of Appeals for the Ninth Circuit. That federal appeals court jurisdiction covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Notably, there are no pending cases challenging the contraceptive coverage requirement in either the Ninth Circuit or any of the lower federal district courts in the states making up that jurisdiction.
Meanwhile, to the east sits the conservative U.S. Court of Appeals for the Fifth Circuit, which covers Louisiana, Mississippi, and Texas; and the U.S. Court of Appeals for the Eighth Circuit, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. Between these two federal circuits there are at least eight pending challenges in either the lower district court or the courts of appeals. That means that over half of the legal challenges filed by religiously affiliated nonprofits have been filed in jurisdictions west of Chicago, Illinois.
Second, the geographical distribution of legal case filings is a pretty accurate reflection of our current political landscape when it comes to issues of reproductive rights and justice. On the one hand, this is not surprising. Conservative states will likely have conservative-minded federal judges appointed to the bench, which means that when national advocacy groups craft a litigation strategy they will look to conservative-leaning jurisdictions as one place to file their lawsuits. On the other hand, for anyone who still believes these legal challenges exist independently of any political campaign to undermine health-care reform, these numbers should do away with that belief. Consider the fact that other than the liberal Ninth Circuit, only one other federal jurisdiction, the First Circuit, currently has no pending nonprofit legal challenges. The First Circuit, also considered a more liberal-leaning appellate circuit, is home to Massachusetts (as well Maine, New Hampshire, and Rhode Island), where health-care reform first took off in the United States. Meanwhile, the more conservative courts of appeals for the Sixth Circuit and the Third Circuit—with the important political swing states of Michigan, Ohio, and Pennsylvania, which are all locked in battles over voting rights, Medicaid expansion, and abortion access—have nearly ten pending legal challenges to the birth control benefit between them.
It will likely be late June before the Supreme Court issues its decision in the Hobby Lobby and Conestoga Wood Specialties cases, and by that time we could have several more appellate decisions in the religious nonprofit challenges like Little Sisters of the Poor. And with so many more cases in the federal courts pipeline, it’s a question of when, not if, these challenges also reach the Roberts Court. That’s why where these cases are being filed matters; it is the circuit court justices who will frame the issue for the Supreme Court to consider. And if we’ve learned any lessons from the for-profit legal challenges to the birth control benefit, it is the danger of letting conservative judges control the framing of reproductive health-care issues.