WASHINGTON, D.C. —(Mealey’s) The U.S. Supreme Court on Nov. 26 announced that it granted certiorari in two cases challenging the birth control mandate contained in the Patient Protection and Affordable Care Act (PPACA). Both of the cases involve for-profit companies opposed to the mandate on religious grounds. In one of the cases, the lower court granted a preliminary injunction to halt the implementation of the mandate, and in the other case, the lower court denied a preliminary injunction (Hobby Lobby Stores Inc., et al. v. Kathleen Sebelius, et al., No. 13-354, U.S. Sup.; Conestoga Woods Specialties Corp., et al. v. Kathleen Sebelius, et al., No. 13-356, U.S. Sup.).
The court granted certiorari in Hobby Lobby Stores Inc., et al. v. Kathleen Sebelius, et al. [lexis.com subscribers may access Supreme Court briefs for this case] and Conestoga Woods Specialties Corp., et al. v. Kathleen Sebelius, et al. [lexis.com subscribers may access Supreme Court briefs for this case]. In both cases, the plaintiffs allege that the birth control mandate contained in the PPACA violates their rights to freedom of religion, speech and association as secured by the First and Fifth Amendments to the U.S. Constitution and the Religious Freedom Restoration Act (RFRA).
Under the PPACA, all group health plans and health insurance issuers that offer nongrandfathered group or individual health coverage are required to provide coverage for certain preventive services without cost-sharing, including for the full range of U.S. Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for women with reproductive capacity. Companies that don’t provide coverage face fines.
In Hobby Lobby, Hobby Lobby Inc., Mardel Inc. and the companies’ owners David Green, Barbara Green, Steve Green, Mart Green and Darsee Lett sued the government in the U.S. District Court for the Western District of Oklahoma. In July, the District Court reversed a previous decision and granted summary judgment in favor of the plaintiffs.
The plaintiffs had appealed the District Court’s initial decision denying preliminary injunction, and in June, a majority of the 10th Circuit U.S. Court of Appeals held that Hobby Lobby and Mardel have standing to sue and that the Anti-Injunction Act (AIA) does not apply to the case. As to the merits, the majority held that the District Court erred in concluding that Hobby Lobby and Mardel had not demonstrated a likelihood of success of their RFRA claim, while three other judges would have affirmed the District Court on the issue.
The majority also held that Hobby Lobby and Mardel satisfied the irreparable harm prong for the preliminary injunction standard. The District Court, however, did not consider all the factors required for a preliminary injunction. The court lacked a majority on the issue, so it remanded the case with instructions for Judge Joe Heaton to resolve the balance of equities and public interest factors and then to assess whether to grant or deny the plaintiffs’ motion.
Upon remand, the District Court found that on balance, the threatened injury to the corporations without the injunction outweighs the potential harm to the government, and it granted the injunction.
The government presented the court with the question: “The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. provides that the government ‘shall not substantially burden a person’s exercise of religion’ unless that burden is the least restrictive means to further a compelling governmental interest. 42 U.S.C. 2000bb-1(a) and (b). The question presented is whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.”
In Conestoga Wood, Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony H. Hahn and Kevin Hahn and Conestoga Wood Specialties Corp. sued the government in the U.S. District Court for the Eastern District of Pennsylvania. In January, the District Court denied the plaintiffs’ request for a preliminary injunction, and the Third Circuit U.S. Court of Appeals affirmed.
In their petition for writ of certiorari, the plaintiffs ask the court “[w]hether the religious owners of a family business, or their closely-held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage Mandate of the [PP]ACA.” The plaintiffs contend that their rights have been violated.
The government had asked the court to hold the petition in Conestoga Wood until disposition of Hobby Lobby.
The cases have been consolidated for appeal, and the court allotted a total of one hour for oral argument.
At the conference, the court also was considering Liberty University v. Lew (No. 13-306 [lexis.com subscribers may access Supreme Court briefs for this case]) and Autocam Corp., et al. v. Kathleen Sebelius, et al. (No. 13-482 [lexis.com subscribers may access Supreme Court briefs for this case]), but no decision on certiorari was made.
The cases also challenge the birth control mandate.
Paul D. Clement and Michael H. McGinley of Bancroft in Washington; Peter M. Dobelbower and John Graham of Hobby Lobby Stores in Oklahoma City; S. Kyle Duncan, Eric C. Rassbach, Luke W. Goodrich, Mark L. Rienzi, Lori H. Windham and Adele Auxier Keim of The Becket Fund For Religious Liberty in Washington and Joshua D. Hawley of the University of Missouri School of Law in Columbia, Mo., represent the plaintiffs in Hobby Lobby. Acting Assistant Attorney General Stuart F. Delery, Deputy Assistant Attorney General Ian Heath Gershengorn, U.S. Attorney Sanford Coats, Director Jennifer Ricketts, Deputy Director Sheila M. Lieber and attorney Michelle R. Bennett, all of the U.S. Department of Justice in Washington, represent the defendants in Hobby Lobby.
Charles W. Proctor III of Lindsay & Dixon in Chadds Ford, Pa., and Randall Luke Wenger of Independence Law Center in Harrisburg, Pa., represent the plaintiffs in Conestoga Wood. Michelle Renee Bennett of the U.S. Department of Justice in Washington represents the defendants in Conestoga Wood.
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