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Birth-control mandate: Which case to review?

With lawyers in different cases arguing that theirs is the best one for the Supreme Court to use in deciding the legality of the birth-control mandate in the new federal health care law, the Court on Monday indicated that it will examine all four pending cases together later this month.  The Court’s electronic docket said the four will be considered on November 26.  If any are granted then or soon afterward, the Court probably would hear and decide them in the current Term.

The federal government has one of the three petitions, and ordinarily it can expect to get its pleas heard.  But the government’s case has been challenged by other lawyers as too narrow in scope, and that has led government lawyers in reply to promise to make theirs broader if it is the one chosen.

The Affordable Care Act’s contraceptive mandate requires employers that provide group health plans for their workers to provide coverage for birth-control methods and devices, pregnancy screening, and other reproductive health services.  At this point, three of the pending cases involve only challenges to that by profit-making business firms with owners who are religiously devout, and the fourth is a challenge by a religiously affiliated university.

At least one of the cases has a strong likelihood of being heard by the Justices, because the federal appeals courts have reached conflicting rulings on the mandate, and two of those courts have indicated that the mandate cannot survive the legal challenges by the business itself, or by its owners as individuals.

To illustrate the conflicts:

The Tenth Circuit Court, in the case that the Justice Department has appealed in the case of a retail crafts store chain, ruled that the mandate’s required coverage of birth-control drugs is likely to be struck down as it applied to the corporation itself; it did not rule on whether the owners themselves could pursue a similar religion-based challenge.  The petition in that case is Sebelius v. Hobby Lobby (docket 13-354).  (The D.C. Circuit Court, in a decision last week that has not yet been taken to the Supreme Court, ruled that the corporation was not protected from the mandate, but that the owners were as individuals.)

The Third Circuit Court, in a case appealed to the Court by a Pennsylvania cabinet-making company and its owners, disagreed directly with the Tenth Circuit, and ruled that a corporation has no religious rights of its own, and it also refused to allow the individual owners to object on their own.  The petition in that case is Conestoga Wood Specialties Corp. v. Sebelius (docket 13-356).

The Sixth Circuit Court, in a case involving two related Michigan companies that make precision instruments for use in auto manufacturing and in medical practice, ruled that a corporation cannot exercise religion and thus cannot make a challenge for itself, and it also barred the religious owners from pursuing their own complaint, finding that the mandate only applies to the company.  The petition in that case is Autocam Corp. v. Sebelius (docket 13-482).

The fourth case in the group now at the Court is Liberty University v. Lew (docket 13-306).  That case involves challenges not only to the birth-control mandate, but also to the individual insurance mandate and the employer insurance mandate.  The Fourth Circuit Court did not rule on the complaint about the birth-control provision, saying that the company was late in raising that issue; however, it rejected the other challenges.  (In 2012, the Supreme Court upheld the tax penalty that is used to enforce the individual mandate, but did not rule on the employer mandate.)

The Justice Department rushed to the Court its responses to the Conestoga, Autocam, and Liberty University petitions to assist the Court in taking them up together, and it urged the Court either to deny review, or to hold the other cases until after it ruled on the government’s Hobby Lobby petition.

Lawyers in the other cases, however, have argued that the Hobby Lobby case only involves the question of a business firm’s right to pursue a challenge to the mandate, and does not address whether the individual owners could do so for themselves.  Thus, the attorneys contend, that is not the best case for review.

The Justice Department, however, has countered that some members of the Tenth Circuit Court did address that separate question when their court ruled, that Hobby Lobby’s lawyers will be raising the issue in their defense of the Tenth Circuit ruling, and that, if the government petition is selected, it will confront that issue in the written briefs it would file in that case.

The government’s case asks the Court to rule only on whether the birth-control mandate violates a federal law, the Religious Freedom Restoration Act.  However, the Conestoga petition also urged the Court to rule on whether it violates the First Amendment’s protection of the “free exercise” of religion, as well as violating RFRA.

The Justice Department argued that the constitutional issue has been ruled upon only by the Third Circuit in the Conestoga case, and the issue has thus not produced a conflict among the appeals courts. The Court, the Department contended, should not step in to decide that issue.

Recommended Citation: Lyle Denniston, Birth-control mandate: Which case to review?, SCOTUSblog (Nov. 4, 2013, 8:20 PM),