Federal Circuit Courts are granting injunctive relief to plaintiffs in suits alleging that the contaceptive mandate violates both the First Amendment free exercise clause and the Religious Freedom Restoration Act:

On Dec. 28, 2012, the U.S. Court of Appeals for the Seventh Circuit ruled that the HHS Mandate violates this family’s religious liberty as guaranteed by the Religious Freedom Restoration Act (RFRA). Kathleen Sebelius’ mandate could be argued to violate the First Amendment as well, but if a court can resolve a case by looking to a statute, it will avoid issuing an opinion regarding constitutional issues. The Seventh Circuit has issued an injunction while the appeal in this case, Korte v. Sebelius, is pending.

In a 2-1 split decision, a three-judge panel of the Seventh Circuit in Chicago rejected the Tenth Circuit’s conclusion in Hobby Lobby Stores, Inc. v. Sebelius that the HHS Mandate does not impose a significant burden on religious freedom by forcing employers to provide insurance that covers things they regard as immoral.

The Seventh Circuit reasoned, “With respect, we think this misunderstands the substance of the claim. The religious-liberty violation at issue here inheres in 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 [by employees].”

The Seventh Circuit also noted that the Eighth Circuit in St. Louis recently came down on the same side of this issue in O’Brien v. U.S. Dep’t of HHS, leaving the Tenth Circuit in Denver as the minority of what is now a 2-1 split between the federal appeals courts.

This now sets the stage for a Supreme Court showdown. The justices may let this issue play out for a few more months until a couple appellate courts hand down full-length opinions exploring all these issues. By contrast, the Seventh Circuit’s action is just an eight-page order. Continue reading →