The question of whether religiously affiliated nonprofit organizations and commercial businesses owned by conservative religious individuals must comply with the mandate in the health reform law that requires health insurance plans to cover contraception without a co-pay is playing out in 59 pending federal court lawsuits. In each, the plaintiff employers are arguing that the requirement violates their religious freedom because they oppose some or all forms of contraception.Depending on how quickly the cases reach a posture in which one of the parties can seek review in the Supreme Court, this issue is likely to generate a high court decision in 2014 or 2015 on whether secular businesses with religious owners can obtain an exemption from laws to which they object.
The contraceptive mandate challenges are divided almost equally between those brought by religiously affiliated nonprofits and those brought by for-profit companies. Because a proposal to accommodate nonprofit organizations is under review and the mandate is suspended for that category of employers, most of the current action concerns the for-profit entities.
The Third, Sixth, and Tenth Circuits have denied requests to grant the companies temporary injunctions, so those plaintiffs will have to comply with the contraceptive mandate pending further proceedings. By contrast, the Seventh, Eighth, and D.C. Circuits have granted temporary injunctions, so the companies involved in these challenges do not have to comply with the mandate, at least temporarily.
In just the last week, the Tenth and Seventh Circuits held en banc rehearings on whether the initial rulings, by three-judge panels, should be reversed. If the two en banc decisions end up contradicting each other, that could set the stage for cert petitions to the Supreme Court.
In the Tenth Circuit, lawyers for Hobby Lobby argued that the business was a “profit-making company, yes, but also a ministry,” and that for-profit corporations could claim free exercise rights under the First Amendment. The Justice Department responded that allowing such an exemption would effectively impose the religious beliefs of the owners on employees with different beliefs. The Seventh Circuit heard essentially the same arguments.