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Contraception dispute advances

Moving the nationwide legal dispute over birth-control health insurance coverage a significant step closer to the Supreme Court, a federal judge in Oklahoma City has ruled that two family-owned private businesses do not have to provide insurance for any contraceptive method that would end a pregnancy even at its earliest stages.  In a a four-page order issued after a hearing on Friday, U.S. District Judge Joe Heaton became the first to flatly bar the federal government from enforcing any part of the contraceptive mandate in the new federal health care law.  Other courts have only delayed the mandate while court appeals went forward.

The government now has the option of appealing Judge Heaton’s order to the Tenth Circuit Court, but that court has already shown a strong inclination to block enforcement in this particular case — Hobby Lobby Stores, Inc. v. Sebelius.   That court, in fact, fell just short of ruling finally in favor of the challenging firms on June 27, in an en banc decision, but it left it to Judge Heaton to decide whether to go the rest of the way and issue a binding order against enforcement.   Although there are sixty lawsuits across the country contesting the mandate, and heavy activity in the federal appeals courts, the Tenth Circuit was the first to issue a full-scale ruling on a challenge.  The blog discussed that ruling in this post.

This case involves two companies run by the devoutly religious Green family in Oklahoma — Hobby Lobby, a chain of arts and crafts stores, and an affiliated firm, Mardel, Inc., which sells Christian literature in a retail store chain.   Together, they have 13,000 employees.

One factor cited by Judge Heaton in issuing a preliminary injunction was that the businesses faced financial penalties that “could conceivably amount to $1.3 million” a day for violating the mandate.  The judge, who earlier had turned down a request to delay enforcement, was overturned by the Tenth Circuit.  In his new order, the judge left little doubt that the Circuit Court had given him little choice.  He noted that the two companies had “newly recognized religious rights” — a reference to a sweeping conclusion by the Circuit Court that business firms can absorb the religious views of their family owners, and then exercise those rights on their own in the way they conduct their business operations.

In addition, the judge said that he based his order not only on what the two sides had argued before him since the Circuit Court ruled; he also was “giving effect to the decision of the Court of Appeals.”

He made a finding that the government had a “not insignificant interest” in providing the two companies’ employees with access to all federally approved contraceptive methods, through a health insurance plan.  But, on balance, he said, he found that the threat of financial penalties and the potential violation of religious rights outweighed the government’s “potential harm.”

The new health care law requires companies with fifty employees or more and with employee benefit plans to provide health insurance for twenty different forms of contraception or pregnancy screening, ranging from oral contraceptives to surgical sterilization.  The two Oklahoma firms and their family owners object on religious grounds only to those mandated methods that would lead to the death of an embryo, from the moment of conception.

Judge Heaton’s order only blocked enforcement of the specific requirements challenged by the two companies and their owners.  While this order is only a preliminary injunction, it clearly has the effect of protecting the two companies from those provisions until further action by the judge.  The judge put on hold any further activity in the case, and ordered the government to advise him by October 1 whether it is going to appeal to the Tenth Circuit.   Since the government has vigorously defended the contraceptive mandate in all of the courts in which it is being challenged, an appeal in this case seems almost a certainty, as does an eventual test of the issue in the Supreme Court, perhaps next Term.

Besides the Tenth Circuit, four other federal appeals courts have held hearings on the mandate, and one more is due to hold a hearing in September.  In addition, the Tenth Circuit has scheduled a hearing in another case in that month.



Recommended Citation: Lyle Denniston, Contraception dispute advances, SCOTUSblog (Jul. 21, 2013, 8:32 PM),