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2 More Circuits Issue Contraception Rulings; Hurry Up SCOTUS!

By William Peacock, Esq. on November 15, 2013 | Last updated on March 21, 2019

We're still waiting ...

Late last month, after the Solicitor General responded to three anti-Obamacare petitions for certiorari, we were pretty sure that the Court was going to take up the issue of the contraception mandate. After all, the Tenth, Sixth, Third, and Fourth Circuits have all issued conflicting rulings on whether a corporation has religious rights, and whether those rights are trampled upon by the Affordable Care Act's so-called contraception mandate.

Plus, the Solicitor General agreed that the court should take up the issue, at least in the Hobby Lobby case out of the Tenth Circuit. Now, add the D.C. Circuit and the Seventh Circuit to the list of courts pressing the issue. Seriously, SCOTUS: it's time.

D.C. Circuit's Conflicting Opinion

You know the legal question is compelling when, after four courts have already addressed the issue, another court issues a ruling that completely differs from its contemporaries.

What was the D.C. Circuit's take? Corporations do not have free exercise of religion rights. And closely-held companies, with limited ownership (mom-and-pop shops, essentially) don't have "pass-through" rights derived from their owners.

However, the owners themselves have standing to assert their own rights, and due to the $14 million penalty for not complying, and the unlikelihood of the mandate holding up to strict scrutiny, the court issued an injunction for the owners.

Seventh Circuit Blocks It Completely

Not to be outdone by the D.C. Circuit's plaintiff-specific injunction, the Seventh Circuit went further than any other circuit so far, and issued an injunction prohibiting enforcement of the mandate completely. That's right, another circuit, another unique outcome.

As for the merits, the Seventh Circuit agreed with the Tenth Circuit that secular, for-profit corporations have religious rights, as do their owners.

Circuit Scorecard

The newest holdings pit the Seventh and Tenth Circuits against the Third and Sixth Circuits, which held that corporations have no such rights, with the D.C. Circuit somewhere in between. Plus, the Fourth Circuit in a semi-related case, tossed out the possibility of an argument that even if such rights exist, that there isn't a "substantial burden" on free exercise.

Almost There

Seriously, is there any way that the Supreme Court can deny certiorari here? There are way too many conflicting opinions, plus many of the affected businesses, such as Hobby Lobby, have to do business in multiple circuits. A decision on certiorari is expected before Thanksgiving, reports The New York Times.

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