ObamaCare's birth control mandate is putting the president's signature legislative issue on a fast track back to the Supreme Court.
Lawyers on both sides of the issue say the high court will almost certainly have to rule on the controversial policy, possibly as early as its next term.
“I think it’s likely the Supreme Court is going to end up deciding this thing, and the question is when,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which has organized many of the 60-plus lawsuits challenging the contraception mandate.
The different rulings by the two federal appeals courts significantly increase the likelihood the mandate will end up with the Supreme Court, possibly with a ruling just two years after the justices ruled ObamaCare’s insurance mandate was constitutional.
Louise Melling, deputy legal director at the American Civil Liberties Union, which supports the contraception mandate, said it’s “likely” the Supreme Court could hear oral arguments in its next term, depending on the timing of appeals.
“I would anticipate, when there’s this much activity … that the court will hear one of these,” Melling said.
Last month, a panel of judges on the 3rd Circuit Court of Appeals ruled against the owners of a for-profit corporation who sued to block the mandate.
Members of the Hahn family, which owns a cabinet-making firm called Conestoga, said complying with the contraception requirement would violate their Mennonite faith.
But the 3rd Circuit said the family could not sue over a policy that applies to its company.
“Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything,” the court said. “All responsibility for complying with the Mandate falls on Conestoga.”
The owners’ religious beliefs do not “pass through” to the corporation they own, the court said in its ruling.
“The Hahn family chose to incorporate and conduct business through Conestoga, thereby obtaining both the advantages and disadvantages of the corporate form. We simply cannot ignore the distinction between Conestoga and the Hahns,” the court said.
The ACLU’s Melling said the 3rd Circuit got it right. The Constitution guarantees freedom of religion to individuals, she said, not businesses.
“Corporations don’t pray and have values,” Melling said.
Alliance Defending Freedom, the group representing Conestoga and the Hahns, has vowed to appeal the ruling to the Supreme Court. Matt Bowman, the alliance’s legal director, said the group will file its appeal as soon as possible.
“We are hopeful that the court will take this because whether families can exercise religion in their daily lives is an extremely important issue, and it can’t be an issue that has a different answer based on what part of the country you live in,” Bowman said in an interview.
ObamaCare’s birth control mandate requires most employers to include contraception in their employees’ healthcare plans without charging a co-pay or deductible.
Churches and houses of worship are completely exempt. Religious-affiliated employers, like Catholic schools and hospitals, don’t have to offer or pay for the coverage themselves, but their insurance companies still have to make it available without cost-sharing.
Most lawsuits against the mandate have been filed by religious-affiliated institutions, but some for-profit corporations without a religious mission have also sued, citing the religious beliefs of their owners.
Critics of the mandate won an important victory in June, when the 10th Circuit Court of Appeals ruled in June that the owners of Hobby Lobby, a chain of arts-and-crafts stores, could sue to block the mandate from applying to their company.
“Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” the 10th Circuit asked. “The kosher butcher, of course, might directly serve a religious community … But we see no reason why one must orient one’s business toward a religious community to preserve Free Exercise protections.”
It’s possible the court could simply agree to hear the Conestoga case, but legal experts said they’re primarily keeping an eye on the Hobby Lobby suit.
How quickly the mandate makes it to the Supreme Court will likely depend on whether and when the Justice Department files an appeal in the Hobby Lobby case, they said.
“I assume they are eager to get this thing resolved,” the Becket Fund’s Rienzi said. His organization represents Hobby Lobby.
Justice could forego a quick appeal and let the issue continue to play out in lower courts. Neither the 3rd Circuit nor the 10th Circuit actually ruled on the merits of whether the contraception policy is constitutional, and similar lawsuits are still pending in two more circuits.
For either case to make it onto the docket in the court’s next term, Justice would need to file its appeal by about Sept. 25, legal observers said.
If the court agrees to hear the case, oral arguments would likely take place early next year and a decision would come by next summer — about two years after the court’s landmark ruling upholding the law’s central provisions.
“I’m just assuming that the court is going to hear one of these cases,” the ACLU’s Melling said.