Not a Lexis+ subscriber? Try it out for free.

Health Care

Supreme Court Denies Injunction Pending Appellate Review Of Birth Control Issue

WASHINGTON, D.C. - (Mealey's) In an in-chambers order, the U.S. Supreme Court on Dec. 26 denied a request for an injunction pending appellate review of a lower court's decision rejecting a preliminary injunction to halt the implementation of a mandate contained in the Patient Protection and Affordable Care Act (PPACA) related to the provision of birth control (Hobby Lobby Stores Inc., et al. v. Kathleen Sebelius, et al., No. 12A644, U.S. Sup.; 2012 U.S. LEXIS 9594).


(Opinion available. Document #31-130109-002Z.

Injunctions Sought 

The PPACA and the Health Care and Education Reconciliation Act (collectively, PPACA) contain a mandate that requires most health care plans to provide free "preventative" services. Those services include vaccines and routine screenings such as cholesterol checkups and mammograms. 

David Green, Barbara Green, Steve Green, Mart Green and Darsee Lett (collectively, the Green family), own and operate Hobby Lobby and Mardel Inc. On Sept. 12, the Greens, Hobby Lobby and Mardel sued Kathleen Sebelius, secretary of Health and Human Services; the Department of Health and Human Services; Hilda Solis, secretary of Labor; the U.S. Department of Labor; Timothy Geithner, secretary of Treasury; and the Department of Treasury in the U.S. District Court for the Western District of Oklahoma, alleging that the mandate 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). The Greens also allege that the mandate is illegal because it was imposed without prior notice or sufficient time for public comment in violation of the Administrative Procedure Act (APA). They also sought a preliminary injunction, saying that they face "the imminent prospect of irreparable harm to their religious freedom, to their business, and to their employees' well-being" without an injunction. 

A District Court judge on Nov. 19 denied the request for the preliminary injunction. The same day, the plaintiffs appealed to the 10th Circuit U.S. Court of Appeals, which denied their motion for an injunction pending resolution of the appeal. 

The plaintiffs then made an application before the Supreme Court for an injunction pending review of the appeal in the 10th Circuit. 

Standard Not Satisfied 

In an opinion written by Justice Sonia Sotomayor, the court denied the request, saying that the plaintiffs "do not satisfy the demanding standard for the extraordinary relief they seek." 

"[W]hatever the ultimate merits of the applicants' claims, their entitlement to relief is not 'indisputably clear,'" the court said. 

The court has not previously addressed similar RFRA or free exercise claims brought by a closely held for-profit corporation and its controlling shareholders alleging that a provision of employee benefits substantially burdens their exercise of religion, the court said.

Further, the lower courts have differed on whether to grant temporary injunctive relief to similarly situated plaintiffs, and no court has issued a final decision granting permanent relief with respect to the claims, the court said. 

Also, "while the applicants allege they will face irreparable harm if they are forced to choose between complying with the contraception-coverage requirement and paying significant fines, they cannot show that an injunction is necessary or appropriate to aid our jurisdiction," the court added. 

Charles E. Geister III and Derek B. Ensminger of Hartzog, Conger, Cason & Neville in Oklahoma City and S. Kyle Duncan, Eric S. Baxter and Lori Halstead Windham of The Becket Fund for Religious Liberty in Washington, D.C., represent the plaintiffs. 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.

[Editor's Note: Lexis subscribers may download the document using the link above. The document(s) are also available at or by calling the Customer Support Department at 1-800-833-9844.]

For all of your legal news needs, please visit subscribers may search all Mealey Publications.

Non-subscribers may search for Mealey Publications stories and documents at or visit

Mealey's is now available in eBook format!

For more information about LexisNexis products and solutions, connect with us through our corporate site.