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Updating the Court on the birth-control mandate

The Obama administration notified the Supreme Court on Thursday of two more of its appeals-court victories in the running legal battles over religious groups’ protests against the new birth-control mandate in the federal Affordable Care Act.   It did so in a letter submitted in two cases that have been in a kind of legal limbo at the Court for the past month.

The letter by Solicitor General Donald F. Verrilli, Jr., noted new rulings by two federal appeals courts that extended a trend of decisions rejecting claims that the government is trying to coerce religious groups such as colleges, hospitals, and other charities into helping to arrange contraceptive services to which they object for their employees or people they serve, such as college students.

The widespread activity on the non-profits’ challenges is almost certain to produce one or more major test cases for the Court for its next Term, starting in October.

The new lower-court actions cited by the Solicitor General were a two-to-one ruling on Tuesday by the U.S. Court of Appeals for the Seventh Circuit in a case involving the University of Notre Dame and a six-to-three decision Wednesday by the U.S. Court of Appeals for the District of Columbia Circuit, refusing rehearing en banc of the case known as the Priests for Life dispute, rejecting the claims of several religious entities.

Those actions were the first in the appeals courts analyzing whether the Justices’ ruling last Term against enforcement of the contraceptive mandate against for-profit businesses owned by a small group of religiously devout individuals would affect scores of cases now moving through the courts involving religious non-profit organizations.

Both the majorities in the Seventh Circuit and the D.C. Circuit found that the non-profits could not take advantage of that ruling in their challenges to the mandate.  (The Justices ruling came last June in Burwell v. Hobby Lobby Stores.)

Among the other developing cases in the appeals courts are a trio in the U.S. Court of Appeals for the Third Circuit.  The non-profits lost their cases in that court last month, and two of the cases were then taken to the Supreme Court, in requests for a temporary delay of the Third Circuit ruling until the organizations could file full formal appeals with the Justices.

Justice Samuel A. Alito, Jr., who handles such requests from the geographic region of the Third Circuit, on April 15 granted a temporary delay.  (The Alito order is here, affecting the two Third Circuit disputes now known as the Zubik and Persico cases.)

Alito, however, only put the Third Circuit’s ruling on hold until the Justice Department had a chance to reply, or until “further order” either from him or from the full Court.  Five days later, the government opposed a temporary delay, and the religious groups’ lawyers answered.

So far as is known, Justice Alito has taken no further action.  It is not clear whether he is continuing to study it on his own or has instead referred it to his colleagues for action; he has the option of handling the cases either way.

Often, such temporary delays are imposed and are set to remain in effect until the Court acts on formal appeals. Alito’s order is not worded that way, presumably because no petitions for review were filed — and not have yet been filed in either of those two cases, or in a third companion case (the Geneva College case).  After Alito issued his April 15 order in the two other cases, the Third Circuit on its own temporarily put the Geneva College case on hold.

Solicitor General Verrilli’s letter updating the Court on recent developments was a fairly routine gesture in the face of new actions in lower courts affecting a pending case at the Court.  Whether his letter would have any effect on the Court could only be known if Justice Alito or the full Court reacts to it by moving the dispute along with a new order.

It is possible that Justice Alito actually intended his order last month to keep the Third Circuit litigation on hold until petitions are filed and the Court acted on them, although it was not phrased that way.

Recommended Citation: Lyle Denniston, Updating the Court on the birth-control mandate, SCOTUSblog (May. 22, 2015, 8:33 AM),