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Broad bar to birth-control mandate

In the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law, a divided Seventh Circuit Court panel decided on Friday that two profit-making companies and their Roman Catholic owners are likely to win their constitutional challenges.  The decision temporarily blocking the mandate is here: sixty-four pages in the majority ruling, ninety pages in the dissent.

While other circuit courts have ruled in favor of challenges either by profit-making companies or by their owners individually, none before Friday had provided protection for both companies and owners under the federal Religious Freedom Restoration Act.  Other circuit courts have turned down the challenges.  The Supreme Court is scheduled to consider three cases on the mandate at its private Conference on November 26 (see this earlier post).  A fourth petition on the issue was filed at the Court on Tuesday (Gilardi v. Department of Health and Human Services, docket 13-567), seeking protection for two related business firms in Ohio.

The Seventh Circuit decision involved challenges by a construction company in Highland, Illinois, Korte & Luitjohan Contractors Inc., and its two owners, who together hold eighty-seven percent of the stock, and a Madison, Illinois, company that makes vehicle safety systems, Grote Industries, Inc., and the six Grote family members who together own the company and its parent corporation.  Their challenges, which lost in preliminary rounds in federal district courts, have been pursued on behalf both of the business firms in their own right and the owners as individuals — all relying upon religious beliefs against the contraceptive mandate and some related reproductive health services under the Affordable Care Act.

The mandate applies to companies that provide their employees with health insurance under group plans.  While the law and government regulations provide some exemptions from the mandate for churches and other strictly religious entities, there are no exemptions for profit-making businesses.

Circuit Judge Diane S. Sykes wrote the majority ruling finding protection for the religious preferences of corporations and their individual owners, when the companies are closely held.  That opinion was joined by Circuit Joel M. Flaum.   Circuit Judge Ilana Diamond Rovner dissented.

Five federal circuit courts have now issued rulings on the constitutional challenges, at least in preliminary decisions on the enforcement issue: the Third, Sixth, Seventh, Tenth, and D.C. Circuits.  The Third and Sixth rejected the challenges.  The split among these courts practically assures that the Supreme Court will agree to take on the issue, both as to corporations and to their owners.

Recommended Citation: Lyle Denniston, Broad bar to birth-control mandate, SCOTUSblog (Nov. 9, 2013, 12:50 AM),