Amid a flurry of court rulings, strict fines kicked in last week for employers that refuse to abide by the Affordable Care Act's (ACA) contraceptive mandate. However, recent judges' opinions on the mandate—which, among other things, requires insurance coverage of emergency contraceptives that religious conservatives believe act as abortifacients—have been anything but unanimous.
On December 20, the Tenth Circuit Court of Appeals denied an injunction to one of the highest-profile plaintiffs, Hobby Lobby. The court concluded that concerns by the craft chain's owners, the evangelical philanthropist Green family, that "funds [might] subsidize someone else's participation in an activity condemned by plaintiff[s'] religion" were not a substantial burden to the Greens' religious exercise.
But one week later, the Seventh Circuit Court of Appeals explicitly disagreed, stating that the Tenth Circuit "misunderstands the substance of the claim." In a ruling granting an injunction to a for-profit construction company, the Seventh Circuit wrote, "The religious‐liberty violation at issue here is the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services."
As a result, the judges ruled 2–1 that the construction company's Catholic owners had established "a reasonable likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise," and noted "the burden will be on the government to demonstrate that the contraception mandate is the least restrictive means of furthering a compelling governmental interest."
The contradictory rulings raise questions about the First Amendment rights of businesses, a question that arose during the United States Supreme Court's Citizens United v. Federal Election Commission ruling in 2009. In that controversial ruling, the court voted 5–4 that the government could not ban financial contributions by corporations to certain political campaigns, citing the First Amendment's protection of political speech. By extension, some courts are asking, can businesses enjoy another First Amendment protection: free exercise of religion?
In the 43 legal challenges to the ACA mandate, some courts have ruled that for-profit companies and their owners are separate entities and thus the companies themselves cannot practice any particular religion. But according to The Becket Fund for Religious Liberty, which represents many of the religious plaintiffs against the Department of Health and Human Services (HHS), 10 of the 13 "for-profit plaintiffs that have obtained rulings touching on the merits of their claims against the Mandate … have secured injunctive relief against it."
Notably, both Priests for Life and Domino's Pizza founder Tom Monaghan also recently won preliminary injunctions. Priests for Life now qualifies under the temporarily enforced "safe harbor" clause for employers who have not previously provided contraceptive coverage to employees.
Among the many nonprofit challengers, Wheaton College and Belmont Abbey College won an important legal round, obtaining an order from the D.C. Circuit Court of Appeals that the government amend the existing "safe harbor" policy for religious employers. That particular ruling applied only to Wheaton and Belmont Abbey. However, an Indiana federal district court recently cited the coming revisions when it dismissed a lawsuit by the University of Notre Dame. Additionally, an Illinois federal district court explicitly sided with the Wheaton ruling last week in dismissing a lawsuit by the Catholic Diocese of Peoria. The court stated:
The Government has stated that it will not enforce the preventive services provisions in their current form and will issue a new rule that addresses concerns like those of the Diocese prior to August 2013. This Court joins other district courts and the Court of Appeals for the District of Columbia in taking these representations to be a binding commitment. The Court therefore finds that as the Government is in the process of amending the preventive service regulations, those regulations are not fit for judicial review at this time.
By contrast, the Roman Catholic Archdiocese of New York was allowed to proceed with its own HHS lawsuit as a federal judge ruled that the government's promise of new regulations for religious employers was no reason to dismiss a challenge to the mandate. In the following weeks, federal district courts also granted temporary restraining orders against the mandate (and its noncompliance fines) in Pennsylvania, Indiana, Illinois, and Missouri (tworulings).(However, a federal court also blocked a bill enacted by the Missouri state legislature to "undercut" the contraceptive mandate.)
In spite of this string of pro-employer rulings, the Sixth Circuit Court of Appeals refused a preliminary injunction to two Michigan-based manufacturing companies. The companies were appealing a ruling in which a lower court concluded that the mandate is a "neutral rule of general applicability."
The Sixth Circuit agreed 2-1 that the employers' claim that the mandate violates their religious beliefs was unlikely to succeed, because both companies already provide employees $5,000 for discretionary healthcare expenses—possibly including contraceptives. However, the court agreed to expedite the appeal, which is on its way to the Supreme Court.
The only company to reach the Supreme Court thus far is Hobby Lobby, which appealed its rejection by the Tenth Circuit but was denieda temporary restraining orderby Justice Sonia Sotomayor on December 27.
In her opinion, Sotomayor stated that Hobby Lobby's case does "not satisfy the demanding standard for the extraordinary relief they seek" because "whatever the ultimate merits of the applicants' claims, their entitlement to relief is not 'indisputably clear.'"
However, she continued:
"This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion. … Moreover, the applicants correctly recognize that lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims…and no court has issued a final decision granting permanent relief with respect to such claims."
