Contraceptives are easy to obtain, and forcing employers to include a broad array of contraceptives in employee health insurance makes as little sense as forcing an auto insurer to cover routine oil changes. Actually, it makes much less sense, since without an oil change, your car will eventually break down, but some people have no desire to ever use any contraceptive (and get by just fine without them).
But that did not stop the Obama administration from imposing a contraceptive mandate on employee health insurance, requiring even religious employers (with the exception of churches) to provide them (and not just contraceptives, but — more controversially — certain abortifacients). Some objectors, like Bishop Lori, have likened the administration’s demand that Catholic institutions provide contraceptive and abortifacient coverage to forcing a kosher deli to serve ham.
HHS Secretary Sebelius admits that she did not even seek a legal opinion about the legality of this mandate before imposing it, even though many legal scholars have since criticized it, and it created a political firestorm in 2012.
Now, the Tenth Circuit Court of Appeals has revived a legal challenge to the contraceptive mandate, ruling in favor of an appeal by the religious employer Hobby Lobby. The court ruled that Hobby Lobby has shown that it will likely succeed on its challenge to the mandate under the Religious Freedom Restoration Act, and is probably entitled to a preliminary injunction against it. As Judge Tymkovich put it in his opinion for the court:
This case requires us to determine whether the Religious Freedom Restoration Act and the Free Exercise Clause protect the plaintiffs—two companies and their owners who run their businesses to reflect their religious values. The companies are Hobby Lobby, a craft store chain, and Mardel, a Christian bookstore chain. Their owners, the Greens, run both companies as closely held family businesses and operate them according to a set of Christian principles. . . the plaintiffs brought an action challenging a regulation that requires them, beginning July 1, 2013, to provide certain contraceptive services as a part of their employer-sponsored health care plan. Among these services are drugs and devices that the plaintiffs believe to be abortifacients, the use of which is contrary to their faith.
We hold that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.
More specifically, the court rules as follows:
As to jurisdictional matters, the court unanimously holds that Hobby Lobby and Mardel have Article III standing to sue and that the Anti-Injunction Act does not apply to this case. Three judges (Kelly, Tymkovich, and Gorsuch, JJ.) would also find that the Anti-Injunction Act is not jurisdictional and the government has forfeited reliance on this statute. These three judges would also hold that the Greens have standing to bring RFRA and Free Exercise claims and that a preliminary injunction should be granted on their RFRA claim. A fourth judge (Matheson, J.) would hold that the Greens have standing and would remand for further consideration of their request for a preliminary injunction on their RFRA claim.
Concerning the merits, a majority of five judges (Kelly, Hartz, Tymkovich, Gorsuch, and Bacharach, JJ.) holds that the district court erred in concluding Hobby Lobby and Mardel had not demonstrated a likelihood of success on their RFRA claim [and] further holds that Hobby Lobby and Mardel satisfy the irreparable harm prong of the preliminary injunction standard. A four-judge plurality (Kelly, Hartz, Tymkovich, Gorsuch, JJ.) would resolve the other two preliminary injunction factors (balance of equities and public interest) in Hobby Lobby and Mardel’s favor and remand with instructions to enter a preliminary injunction, but the court lacks a majority to do so. Instead, the court remands to the district court for further evaluation of the two remaining preliminary injunction factors. . . .Accordingly, for the reasons set forth below and exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we reverse the district court’s denial of the plaintiffs’ motion for a preliminary injunction and remand with instructions that the district court address the remaining two preliminary injunction factors and then assess whether to grant or deny the plaintiffs’ motion.
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