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Clarifying next step on contraception dispute

The dispute in an Oklahoma case over the contraception mandate in the new federal health care law would go directly to the Supreme Court, rather than go back to a federal appeals court, under an arrangement made by Justice Department lawyers late last week, according to lawyers involved in that case.  This is a change from the scenario that this blog reported on Sunday.  As a result, the government must decide by September 25 if it is going to take to the Supreme Court the case of Hobby Lobby v. Sebelius.

That would make the Hobby Lobby case the first to reach the Justices, among the more than sixty lawsuits that have been filed around the country by both profit-making businesses and non-profit institutions that object to the birth-control mandate as a violation of their religious beliefs.

Technically, the government would be challenging in the Supreme Court both a sweeping decision by the en banc Tenth Circuit, on June 27, as well as a federal district judge’s order last Friday barring enforcement of part of the contraception mandate against two Oklahoma business firms that have been challenging the mandate.

The procedural situation had grown complex because the Tenth Circuit had not reached a final ruling in its late June decision on the challenge by Hobby Lobby Stores, Inc., and an affiliated company, but had sent it back to U.S. District Judge Joe Heaton in Oklahoma City to make the final decision on whether to bar enforcement in this case.

On Friday, based on an agreement between attorneys for the Justice Department and for the challenging companies, Judge Heaton issued a preliminary injunction barring enforcement, but put the case on hold to give the Justice Department time to decide whether to go on to the Supreme Court, to contest both the Circuit Court ruling and the District Court’s injunction.  The Department was told to inform the judge by October 1 on whether it would be going to the Supreme Court.

Under the timetable set by Supreme Court rules, the Justice Department would have ninety days — that is, until September 25 — to file a petition for review in the Supreme Court.   That date was part of the understanding among the lawyers and Judge Heaton, according to lawyers involved in the case.

These arrangements were discussed in a court hearing before the judge last Friday, but were not spelled out in full in the order that Judge Heaton issued later Friday.

The blog regrets its earlier misunderstanding of the next step in this case.  The blog thanks a reader for helping to clarify the procedural stance of the case at this point.

Recommended Citation: Lyle Denniston, Clarifying next step on contraception dispute, SCOTUSblog (Jul. 22, 2013, 12:01 PM),