More judges rule against Obamacare contraceptive mandate

More judges rule against Obamacare contraceptive mandate

Dr  ObamaContraceptives are easy to obtain, and forcing employers to include them in health insurance makes as little sense as forcing an auto insurer to cover routine oil changes. Actually, it makes much less sense, since without an oil change, your car will eventually break down, but some people have no desire to ever use any contraceptive (and get by just fine without them). But that did not stop the Obama administration from imposing a contraceptive mandate on even religious employers.

Some objectors, like Bishop Lori, have likened the Obama Administration’s demand that Catholic institutions provide contraceptive and abortifacient coverage to forcing a kosher deli to serve ham.  (The Administration’s rule exempts churches themselves from this mandate, but not most religious businesses or non-profit institutions.).

HHS Secretary Kathleen Sebelius admits that she did not even seek a legal opinion about the legality of this mandate before imposing it, even though many legal scholars have since criticized it, and it created a political firestorm in 2012.

Now, the Tenth Circuit Court of Appeals has revived a legal challenge to the contraceptive mandate, ruling in favor of an appeal by the religious employer Hobby Lobby. The court ruled that Hobby Lobby has shown that it will likely succeed on its challenge to the mandate under the Religious Freedom Restoration Act, and is probably entitled to a preliminary injunction against it. As Judge Tymkovich put it in his opinion for the court:

This case requires us to determine whether the Religious Freedom Restoration Act and the Free Exercise Clause protect the plaintiffs—two companies and their owners who run their businesses to reflect their religious values. The companies are Hobby Lobby, a craft store chain, and Mardel, a Christian bookstore chain. Their owners, the Greens, run both companies as closely held family businesses and operate them according to a set of Christian principles. . . the plaintiffs brought an action challenging a regulation that requires them, beginning July 1, 2013, to provide certain contraceptive services as a part of their employer-sponsored health care plan. Among these services are drugs and devices that the plaintiffs believe to be abortifacients, the use of which is contrary to their faith.

We hold that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.

More specifically, the court rules as follows:

As to jurisdictional matters, the court unanimously holds that Hobby Lobby and Mardel have Article III standing to sue and that the Anti-Injunction Act does not apply to this case. Three judges (Kelly, Tymkovich, and Gorsuch, JJ.) would also find that the Anti-Injunction Act is not jurisdictional and the government has forfeited reliance on this statute. These three judges would also hold that the Greens have standing to bring RFRA and Free Exercise claims and that a preliminary injunction should be granted on their RFRA claim. A fourth judge (Matheson, J.) would hold that the Greens have standing and would remand for further consideration of their request for a preliminary injunction on their RFRA claim.

Concerning the merits, a majority of five judges (Kelly, Hartz, Tymkovich, Gorsuch, and Bacharach, JJ.) holds that the district court erred in concluding Hobby Lobby and Mardel had not demonstrated a likelihood of success on their RFRA claim [and] further holds that Hobby Lobby and Mardel satisfy the irreparable harm prong of the preliminary injunction standard. A four-judge plurality (Kelly, Hartz, Tymkovich, Gorsuch, JJ.) would resolve the other two preliminary injunction factors (balance of equities and public interest) in Hobby Lobby and Mardel’s favor and remand with instructions to enter a preliminary injunction, but the court lacks a majority to do so. Instead, the court remands to the district court for further evaluation of the two remaining preliminary injunction factors. . . .Accordingly, for the reasons set forth below and exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we reverse the district court’s denial of the plaintiffs’ motion for a preliminary injunction and remand with instructions that the district court address the remaining two preliminary injunction factors and then assess whether to grant or deny the plaintiffs’ motion.

On December 28, another federal appeals court, the Seventh Circuit, also ruled against the contraceptive mandate in Korte v. Sebelius. In doing so, it granted the challenger a preliminary injunction against the Obama administration. On December 19, 2012, yet another federal appeals court, the D.C. Circuit, overturned the dismissal of a challenge to the contraceptive mandate.

Earlier, HHS Secretary Sebelius, who imposed the mandate, attempted to gag insurers from discussing how Obamacare has spawned increases in the cost of health insurance, and endangered existing health plans, in violation of the First Amendment and free-speech guarantees.

Last February, I explained in The Washington Post why the contraceptive mandate violates the Religious Freedom Restoration Act, and at OneNewsNow why it may also violate the First Amendment’s Free Exercise Clause (because it is not a true rule of general applicability), at this link. (My analysis is not based on my religious beliefs. I have no objection of any kind to contraception, am not Catholic, and do not belong to any religious sect that objects to contraception of any kind.  And my colleagues at the Competitive Enterprise Institute in Washington, where I work, have supported making Plan B contraception publicly available without a prescription. But just as I don’t think Jewish deli owners should be forced to serve bacon and pork, I also don’t think Catholic schools and hospitals should have to pay for contraceptives or abortifacients.). I earlier addressed legal misconceptions held by supporters of the mandate, and factually inaccurate claims about the mandate’s reach (and its supposed similarity to various pre-existing state laws), at this link.

After I was interviewed by journalists about this subject in the past (I was interviewed because I used to litigate First Amendment and religious-freedom cases as a lawyer, and thus know this area of law), I received testy emails from uninformed people telling me not to impose my “religion,” and the teachings of my “church” on other people. While I have no objections whatsoever to birth control, I don’t seek to impose my own approval of contraception on churches that have objections to them. The wisdom of religious beliefs is immaterial for purposes of whether the Constitution protects them. As the Supreme Court has emphasized, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” See Thomas v. Review Board, 450 U.S. 707, 714 (1981). Thus, this is not, as some of those who have contacted me view it, about restricting people’s “sexual choices.” People can afford to pay for their own contraception, as my own family can attest. The Obama administration has provided ludicrously inflated estimates of the lifetime cost of contraceptives, but even under its estimates, virtually everyone can afford them. It would be cheaper still if the government would reduce regulation of contraceptives, such as allowing oral contraceptives to be sold over the counter. It is not a restriction on “women’s sexual choices” to let people pay for their own contraceptives, rather than forcing their employer or insurer to pay for it.

To impose the contraception mandate, the Obama administration issued a regulation under the 2010 healthcare law, the Affordable Care Act (ACA).  Other Obamacare mandates that are more costly have led some employers to stop hiring or lay off employees, and others are getting rid of full-time employees and replacing them with part-timers to avoid Obamacare mandates that apply to full-time employees. Obamacare has wiped out jobs in the medical device industry through what even liberal Sen. Al Franken, D-Minn., conceded was a “job-killing tax” that will “impair American competitiveness in the medical device field.”


Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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