The Government has stated that it will not enforce the preventive services provisions in their current form and will issue a new rule that addresses concerns like those of the Diocese prior to August 2013. This Court joins other district courts and the Court of Appeals for the District of Columbia in taking these representations to be a binding commitment. The Court therefore finds that as the Government is in the process of amending the preventive service regulations, those regulations are not fit for judicial review at this time.
By contrast, the Roman Catholic Archdiocese of New York was allowed to proceed with its own HHS lawsuit as a federal judge ruled that the government's promise of new regulations for religious employers was no reason to dismiss a challenge to the mandate. In the following weeks, federal district courts also granted temporary restraining orders against the mandate (and its noncompliance fines) in Pennsylvania, Indiana, Illinois, and Missouri (two rulings).(However, a federal court also blocked a bill enacted by the Missouri state legislature to "undercut" the contraceptive mandate.)
In spite of this string of pro-employer rulings, the Sixth Circuit Court of Appeals refused a preliminary injunction to two Michigan-based manufacturing companies. The companies were appealing a ruling in which a lower court concluded that the mandate is a "neutral rule of general applicability."
The Sixth Circuit agreed 2-1 that the employers' claim that the mandate violates their religious beliefs was unlikely to succeed, because both companies already provide employees $5,000 for discretionary healthcare expenses—possibly including contraceptives. However, the court agreed to expedite the appeal, which is on its way to the Supreme Court.
The only company to reach the Supreme Court thus far is Hobby Lobby, which appealed its rejection by the Tenth Circuit but was denied a temporary restraining order by Justice Sonia Sotomayor on December 27.
In her opinion, Sotomayor stated that Hobby Lobby's case does "not satisfy the demanding standard for the extraordinary relief they seek" because "whatever the ultimate merits of the applicants' claims, their entitlement to relief is not 'indisputably clear.'"
However, she continued:
"This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion. … Moreover, the applicants correctly recognize that lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims…and no court has issued a final decision granting permanent relief with respect to such claims."