But most of these judges have declined to tackle the key question of corporate personhood—that is, whether or not a for-profit employer can exercise religious conscience on behalf of its owners. That reticence could benefit the plaintiffs like Hobby Lobby: Given the number of lawsuits—and possibly more on the way—it would be foolish not to address them once and for all, Colby said.
Colby suspects the Supreme Court will accept both cases. "If they take Hobby Lobby … that would mean they'd have to address the whole issue of substantial burden and compelling government interest," she said.
A Supreme Court ruling could offer the authoritative voice that the companies seek—and relatively soon. If justices grant review to either case, it is "highly likely that the Supreme Court will decide the issue in the upcoming term," Becket stated in a press release. That means a final decision on the contraception mandate could come as soon as June 2014.
"Whatever the answer is, it's probably good if we hear from the Supreme Court soon rather than suffer through 70-plus lawsuits over the next years," Rienzi said.
Such a ruling would come nearly one year after HHS issued what it said was its final rule on the mandate in June 2013. The rule released at that time defined a "religious employer" and didn't provide a religious liberty exemption to for-profit companies like Hobby Lobby and Conestoga. (The 6th Circuit Court of Appeals upheld that definition last month when it ruled against Autocam, a Michigan-based auto manufacturing company with religious owners.)
But the government's definition also failed to placate some non-profit plaintiffs who still don't qualify because they are not direct ministries of a church. One such ministry is Little Sisters of the Poor, an order of Catholic nuns, who filed a class-action lawsuit on Tuesday.
"Their claims are asserted not just on behalf of Little Sisters but all other catholic organizations that get insurance through Christian Brothers Services," Rienzi said. "There's the possibility of getting relief for hundreds of organizations all at once."
Little Sisters of the Poor is exempt at the moment under an existing "safe harbor" clause, but those protections end on Jan. 1, 2014. Once that safe harbor clause runs out, nonprofits will face the same, steep fines as their for-profit counterparts.
As a result, non-profit plaintiffs, including Ave Maria University, Westminster Theological Seminary, and the Washington Catholic Archdiocese, are beginning to re-file their complaints. Southern Nazarene, Oklahoma Wesleyan, Oklahoma Baptist, and Mid-America Christian Universities filed a similar case last weekend.
All of these plaintiffs allege that the government's "compromise for religious non-profit organizations that object to furnishing contraceptive coverage is insufficient," Religion Clause states.
CT previously has reported extensively on the battles over the ACA's contraception mandate, including running coverage of the Hobby Lobby case as it moved through the courts. Notably, CT explored the question of corporate personhood and religious rights in both February and May.
CT also rounded up the wave of contradictory court rulings released as fines over the contraceptive mandate were scheduled to begin. Hobby Lobby, among the many surprising Christian organizations suing the government, previously lost its bid for an injunction before the Tenth Circuit Court of Appeals, as well as its subsequent request for a temporary restraining order before the United States Supreme Court.