Last Friday, one of the many court cases against the Obama administration’s contraception rule reached the Supreme Court. After the Tenth Circuit Court of Appeals denied Hobby Lobby, a Midwest craft store chain, injunctive relief against the rule set to go into effect on January 1, the store and other plaintiffs filed an emergency application with the Supreme Court. If the Court grants an injunction, only the plaintiffs in this case will be allowed to forgo the law, though lower courts with similar cases are likely to also issue injunctive relief as a result.
The ACA requires employers to provide health insurance plans that cover women’s preventative health care, like contraception and well-woman visits, without charging a co-pay or deductible. While the rule is popular with women’s groups and the general public, 44 lawsuits have been filed by religious organizations and business owners.
Last Monday the Obama administration announced that they would release new guidelines for religious exemptions to the Affordable Health Care Act’s (ACA) contraception rule within the first three months of 2013. While these new guidelines could appease some plaintiffs in these cases, the rules are not likely to change for business like Hobby Lobby, seeing as the government has argued in these cases that corporations do not have a First Amendment right to practice religion.
As this issue make its way to the highest court in the land, here are five things you need to know now about the current legal landscape:
1) The 44 lawsuits against the Obama administration have been filed in federal courts in 18 states. (AL, CO, DC, FL, GA, IL, IN, LA, NE, MI, MN, MO, MS, NY, OH, PA, TN, TX.)
Here's a typical play-by-play of the way these cases are working out.
First, the plaintiffs file a complaint in their federal district court. A majority of the plaintiffs also filed a motion for preliminary injunction, which askes the court to block the law from going into effect until a ruling on the constitutionality is issued. The government has been filing a motion to dismiss in most cases, claiming that the plaintiffs either lack standing or that the issue is moot. Most courts are ruling on the motions for preliminary injunction first, because these motions are must take into consideration the immediacy of the harm the plaintiffs claim to face. A ruling on these motions also allows the courts to avoid ruling on the merits. If one of the parties does not like the ruling on the motion for preliminary injunction or the motion to dismiss, they will file an appeal to their geographic area's Circuit court.
Nine cases (Belmont, Wheaton, Nebraska, O’Brien, Newland, Hobby Lobby, Korte, Autocam, Diocese of Nashville) have been appealed to the Circuit court level (in the 6th, 7th, 8th, 10th and D.C. Circuit courts) over dismissal (Belmont, Wheaton, Nebraska, O’Brien, Diocese of Nashville) or because preliminary injunction was granted (Newland) or denied (Hobby Lobby, Korte, Autocam). The first Circuit Court level oral argument on the merits (not injunctive relief) took place in the Circuit Court for the District of Columbia two weeks ago regarding the now combined cases of Belmont and Wheaton. Hobby Lobby was denied an injunction by the Tenth Circuit Court last Thursday, and it has now become the first case to appeal a decision on this issue to the Supreme Court.
While Justice Sotomayor is the Circuit Justice for this case’s geographic area, she will likely share the decision making on their request for injunctive relief with the entire court.
2) Some cases are challenging the whole contraception rule, while others only object to covering emergency contraception because they believe it is an abortifacient.
Hobby Lobby, for instance, only objects to emergency contraception. Some of the plaintiffs didn’t realize they covered contraception before the rule was announced, but are suing so that they no longer have to. Wheaton is one such example: the for-profit business O’Brien Industrial Holdings is another.
3) The plaintiffs in these cases are making two kinds of claims.
The first is that the contraception rule violates the First Amendment’s free exercise, free speech, and establishment clauses, and the second is that the contraception rule violates the Religious Freedom Restoration Act (RFRA), although some cases do not make all of these claims.
In order to show that the contraception rule complies with the Free Exercise clause, the government must prove that the law is neutral in terms of religion (does not discriminate on its face by, says, only applying to Jewish employers) and that it is generally applicable. For-profit plaintiffs argue that because there is an exemption for some religious employers (only churches, currently) but not others, the law is not generally applicable.
Plaintiffs that claim the contraception rule violates the Establishment clause of the First Amendment argue that, because some religious employers will be exempt while others will not, the government has set up a system where they must examine evaluate applicants religious beliefs. (Note that the administration has granted an exception to all churches that express a religious objection to contraception, but not to other employers of the same faith.)
The Free Speech claim made by plaintiffs is that by requiring them to provide contraception coverage, the government is requiring organizations to essentially endorse contraception. The government argues that the rule regulates conduct, not speech, and has argued in their briefs that these employers can provide their employees with literature that explains why contraception is against their religious beliefs. The question before the courts is whether the conduct of providing contraceptive coverage is inherently expressive.
RFRA sets up a two prong test for laws. First, laws must not place a substantial burden on religious practice (famous laws or rules that have failed this test include those requiring workers to work on their Sabbath, see Sherbert v. Verner , and requiring compulsory school attendance, see Wisconsin v. Yoder.)
However, if they do create what courts find to be a substantial burden, the laws must serve a compelling state interest and be implemented in the least restrictive way possible. The government claims that promoting women’s health and equality by providing affordable access to contraception is a compelling state interest; plaintiffs disagree. The Obama administration has been taking such great pains to outline and then modify the contraception rule for religious employers in order to comply with the “least restrictive means” prong; we will have to wait and see if the courts think they have done enough to ease the burden for religious employers.
4) The lawsuits can be broken up into two categories.
The suits include those filed by religious non-profit organizations (like local Catholic Archdiocese or organizations like “Priests for Life) and religiously affiliated universities (like Geneva College in Pennsylvania or Criswell College in Texas), and those filed by for-profit business run by individuals who are religiously and/or morally opposed to contraception (including Conestoga Wood Specialists, a Mennonite-owned business in Pennsylvania, and Domino’s Farms, a business park owned by the founder of Domino’s Pizza that is the plaintiff in the latest lawsuit filed against the rule).
In the cases filed by non-profits and religiously affiliated colleges, the government has argued that their complaints are moot because new accommodations will be issued shortly.
However, in the cases filed by for-profit companies, the government argues that the plaintiffs have no standing to sue because they do not have a right to free practice of religion as defined by the First Amendment. So far, 15 of the 44 cases have been filed by for-profit businesses. Some of these businesses have no explicit religious purpose, like American Pulverizer Corporation in Missouri, while others like Tyndale Publishing Corporation, a Bible publisher in Washington D.C., have obvious ties.
5) While outrage of the administration’s contraception rule burst in February 2012, 26 states have similar laws already on the books.
Some of these laws have been challenged legally, but none of them have been struck down through the courts. Two additional states require employers to at least offer the option of contraception coverage. However, of these states, 20 outline religious exemptions to contraception coverage, to varying degrees.
A ruling from the Supreme Court granting injunctive relief to the plaintiffs in Hobby Lobby may not end the debate. Because they lawsuits are brought by two dramatically different sets of parties, and because there are a variety of claims being made in each case, many more of these lawsuits are likely to find their way to our highest court. Keep your eyes out for more updates on this issue in the courts.