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Judges predict foes will win on birth control mandate

Five federal judges, breaking ranks with a rising number of their colleagues on the federal courts of appeals, predicted on Thursday that the federal health care law’s birth-control mandate ultimately will fall, when tested in the Supreme Court by non-profit religious groups.

The five are members of the U.S. Court of Appeals for the Tenth Circuit — one of six federal courts at that level which have upheld the Affordable Care Act’s requirement that contraceptive services must be made available for free, despite religious protests by non-profit colleges, hospitals, and charities.  This unanimity led the Obama administration to urge the Supreme Court this month to pass up a series of appeals that have been reaching the Justices this summer.

Yesterday’s conflicting development came as the Tenth Circuit split seven to five in refusing to rehear en banc several challenges filed by non-profit groups — including one of the best-known cases, filed by a group of Denver-based nuns, the Little Sisters of the Poor.

Although the institutions involved in the Tenth Circuit cases had not asked for en banc review, but instead had moved on to the Supreme Court, one or more of the judges on the Tenth Circuit called for a vote on it — an option open to the court’s members.  The majority gave no reason for denying reconsideration, but the five dissenters protested strongly the failure to do so.

Circuit Judge Harris L. Hartz, writing for the dissenters, said a three-judge panel of that court was “clearly and gravely wrong” in its mid-July decision rejecting the non-profits’ freedom-of-religion complaints.  “I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere beliefs (however strange, or even silly the court may consider those beliefs),” Judge Hartz wrote.

But, he commented: “Fortunately, the doctrine of the panel majority will not long survive.  It is contrary to all precedent concerning the free exercise of religion.”  That comment, although not specifying where the issue would be resolved against the ACA mandate, came after he had cited Supreme Court precedent that he said bore on the issue, and thus clearly amounted to a suggestion that the Supreme Court will not allow the panel’s view to stand.

The primary complaint of the dissenters was that the panel had substituted its own views of what violates a group’s religious beliefs for that group’s own expression of the burden it feels on its faith.   That switch, Judge Hartz wrote, focused on the group’s claim that they will be facilitating the availability of birth-control devices that they oppose, if they do anything that clears the way for the government to arrange such access.

The panel majority, he said, accepted the sincerity of the groups’ religious beliefs, but then refused to acknowledge what they said their belief is.  This, he wrote, “”is a dangerous approach to religious liberty.  Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative?”  The issue, he added, is not just about access to birth-control services, but a core question about religious freedom to decide what one’s own faith principles are.

The federal government has repeatedly argued in court that, if the non-profit groups filed a form or a letter noting their objection, they will no longer be involved in the process, and the government will then arrange on its own for coverage of the contraceptive services for the groups’ employees and students.  The religious groups, according to the official argument, will be completely out of the loop.

The government’s argument has prevailed in all six federal appeals courts that have ruled on it so far.

Judge Hartz’s dissent was joined by Circuit Judges Neil M. Gorsuch, Jerome A. Holmes, Paul J. Kelly, Jr., and Timothy M. Timkovich.

When the three-judge panel ruled on the non-profits’ challenges on July 14 (the decision now being challenged in Supreme Court petitions), it partially split two to one.  All three judges rejected the claims of religious groups that were sponsors of health coverage that was insured by separate entities, but one judge dissented when the majority rejected similar claims by groups that self-insure.   In the majority were Circuit Judge Scott M. Matheson, Jr., and Senior Circuit Judge Monroe G. McKay.   The partial dissent was filed by Senior Circuit Judge Bobby R. Baldock.

Judge Matheson did not support en banc review, and the two other judges on the panel, as senior judges, did not vote on that question.

While the dissenters led by Judge Hartz did want en  banc review, they would do so, he suggested, with the specific aim of setting aside the panel’s ruling and then ordering it to determine whether the opt-out procedure for religious non-profits was “the least restrictive means” of achieving the ACA’s interest in assuring access to contraceptive services.

In the Supreme Court, the Obama administration, while arguing that none of the appeals court rulings justifies review by the Justices, did suggest that the Court, if it wishes to address the dispute, should choose one from the U.S. Court of Appeals for the District of Columbia Circuit that raises the broadest range of issues about the mandate.



Recommended Citation: Lyle Denniston, Judges predict foes will win on birth control mandate, SCOTUSblog (Sep. 3, 2015, 8:50 PM),