Amid a flurry of court rulings, strict fines kicked in last week for employers that refuse to abide by the Affordable Care Act's (ACA) contraceptive mandate. However, recent judges' opinions on the mandate—which, among other things, requires insurance coverage of emergency contraceptives that religious conservatives believe act as abortifacients—have been anything but unanimous.
On December 20, the Tenth Circuit Court of Appeals denied an injunction to one of the highest-profile plaintiffs, Hobby Lobby. The court concluded that concerns by the craft chain's owners, the evangelical philanthropist Green family, that "funds [might] subsidize someone else's participation in an activity condemned by plaintiff[s'] religion" were not a substantial burden to the Greens' religious exercise.
But one week later, the Seventh Circuit Court of Appeals explicitly disagreed, stating that the Tenth Circuit "misunderstands the substance of the claim." In a ruling granting an injunction to a for-profit construction company, the Seventh Circuit wrote, "The religious‐liberty violation at issue here is the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services."
As a result, the judges ruled 2–1 that the construction company's Catholic owners had established "a reasonable likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise," and noted "the burden will be on the government to demonstrate that the contraception mandate is the least restrictive means of furthering a compelling governmental interest."
The contradictory rulings raise questions about the First Amendment rights of businesses, a question that arose during the United States Supreme Court's Citizens United v. Federal Election Commission ruling in 2009. In that controversial ruling, the court voted 5–4 that the government could not ban financial contributions by corporations to certain political campaigns, citing the First Amendment's protection of political speech. By extension, some courts are asking, can businesses enjoy another First Amendment protection: free exercise of religion?
In the 43 legal challenges to the ACA mandate, some courts have ruled that for-profit companies and their owners are separate entities and thus the companies themselves cannot practice any particular religion. But according to The Becket Fund for Religious Liberty, which represents many of the religious plaintiffs against the Department of Health and Human Services (HHS), 10 of the 13 "for-profit plaintiffs that have obtained rulings touching on the merits of their claims against the Mandate ... have secured injunctive relief against it."
Notably, both Priests for Life and Domino's Pizza founder Tom Monaghan also recently won preliminary injunctions. Priests for Life now qualifies under the temporarily enforced "safe harbor" clause for employers who have not previously provided contraceptive coverage to employees.
Among the many nonprofit challengers, Wheaton College and Belmont Abbey College won an important legal round, obtaining an order from the D.C. Circuit Court of Appeals that the government amend the existing "safe harbor" policy for religious employers. That particular ruling applied only to Wheaton and Belmont Abbey. However, an Indiana federal district court recently cited the coming revisions when it dismissed a lawsuit by the University of Notre Dame. Additionally, an Illinois federal district court explicitly sided with the Wheaton ruling last week in dismissing a lawsuit by the Catholic Diocese of Peoria. The court stated: