The contraceptive insurance mandate: At high risk in the 10th Circuit?

by on April 3, 2013  •  In Health, Religion, Reproductive rights

The health reform legislation enacted in 2010 requires workplace health insurance plans to include coverage for contraceptives. In a massive mobilization, more than 40 lawsuits have been filed in federal courts around the country challenging that provision. A number of plaintiffs in these suits are commercial, secular businesses, whose owners claim that they should be exempt because of their personal religious beliefs. It now appears that a prior Court of Appeals decision denying an injunction to this category of plaintiff may be in danger of flipping the other way. The grant of an en banc hearing stated that the briefing and argument schedule would be expedited.

From Think Progress:

Last December, a panel of the United States Court of Appeals for the Tenth Circuit denied a request from crafting retail chain Hobby Lobby, which sought to temporarily block Obama Administration rules requiring most employer-provided health plans to cover birth control. Hobby Lobby claimed that the religious liberties protected by the Constitution and federal law extend not only to a religious person’s own conduct, but they also effectively enable an employer to restrict someone else’s access to birth control by denying them benefits guaranteed by the law. The panel’s decision rejected this argument.

[Now], however, the full Tenth Circuit agreed to hear the case in an unusual nine-judge hearing — a procedure known as “en banc.” Typically, federal appeals are heard by three-judge panels, and this is especially true when no such panel has fully considered the case on the merits. The court’s previous order concerned a preliminary motion seeking a temporary injunction, not a final consideration of the case.

The court’s decision to hear the case en banc is an ominous sign for women in the workforce. More often than not, courts of appeals agree to hold an en banc hearing only when a majority of the court’s judges disagree with a panel’s previous disposition of a case. Even if that was not the motivation behind this particular decision to en banc this particular case, the fact remains that 6 of the Tenth Circuit’s 10 active judges are Republican-appointees (although one of the Republicans, Judge Jerome Holmes, is recused).

It should also be noted that the fate of the birth control rules would likely be much brighter in the Tenth Circuit if the White House was swifter at nominating judges and if the Senate had pushed through real filibuster reform that would have prevented Senate Republican obstruction of the President’s nominees. Two seats on the Tenth Circuit are vacant, and President Obama has yet to nominate anyone to fill these seats.

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