Written by Don Byrd
Early this year, a panel of the 7th Circuit Court of Appeals halted the enforcement of the Affordable Care Act’s contraception coverage mandate against the owners of closely held corporations who object on religious grounds, pending their appeal of the trial court’s refusal (in this case, the refusal of 2 trial courts) to issue a preliminary injunction against enforcement. Now that the appeal has been heard, the Appeals Court, unsurprisingly, has turned their initial skepticism about the lawfulness of the mandate into a preliminary injunction.
In the lengthy opinion (154 pages!), the majority concludes that corporations, like the closely-held entities that brought the suit, are people capable of exercising religion for the purposes of the Religious Freedom Restoration Act. Further, the corporations are likely to succeed at trial in proving the mandate poses a substantial burden on that religious exercise.
In a 79-page dissent, Judge Rovner sums up her disagreement with both conclusions this way:
[I]n the name of free exercise of religion, the court has relieved two secular corporations from a statutory obligation to provide health insurance to their employees that includes coverage of contraceptive care for the companies’ female employees. Realistically, the only religious interests at stake are those of the corporations’ owners—their faith is the source of the objection to contraception. Yet the Affordable Care Act in no way imposes on their beliefs, their worship activities, or the conduct of their personal lives. They need not use, endorse, or dispense contraception; they remain free to speak out against the use of contraception whenever and wherever they wish. In short, their own exercise of religion is wholly undisturbed. It is the corporations as employers, which shoulder the obligations imposed by the ACA; and they need not say or do anything with respect to contraception beyond including it among the countless other medical goods and services covered by their employee health plans. The plaintiffs nonetheless object to this as facilitating the use of contraception. I would characterize it as facilitating an employee’s choice to use contraception. An employee’s choice may be inconsistent with the owners’ religious beliefs, but it is not the owners’ choice, and it does not substantially burden the exercise of their religious freedoms.
