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November 01, 2013 4:31 PM More Judicial Clutter on Contraception Coverage Mandate

By Ed Kilgore

If you’re wondering if it really matters whether Barack Obama gets to appoint some new members to the D.C. Court of Appeals, you might want to be aware of its latest decision (actually, a three-judge panel, composed of one W. appointee, one Poppy appointee, and one Carter appointee). Here’s Lyle Denniston’s quick analysis at SCOTUSBlog:

Taking a split approach, the D.C. Circuit ruled on Friday that profit-making corporations cannot make a religious challenge to the new health care law’s mandate that workers get birth-control and related medical coverage; however, if the firm is owned by only a few individuals, they can challenge it to defend their own religious objections, and they may well win. The two major parts of the ruling split the three judges in differing ways.
The Supreme Court already has three cases awaiting its attention on the Affordable Care Act’s contraception coverage mandate — with differing outcomes in lower courts — and the somewhat unusual approach taken by the D.C. Circuit on Friday may simply add an additional impetus for the Court to take on the issue in the current Term.

The “unusual approach” involves both the ruling—for-profit corporations can’t claim a religious exemption, but their owners, if it’s a closely-held company, can for their own corporate activities—and the remedy—a remand to the D.C. District Court to reconsider whether an injunction halting enforcement of the contraception coverage mandate in this or similar cases might not be appropriate after all.

The author of the majority opinion, Judge Janice Rogers Brown (which some of you may remember as a name on various Supreme Court lists during W.’s administration) may have disappointed corporations-are-people-too advocates (like the management of Hobby Lobby, which obtained a temporary exemption from compliance with the mandate via the Tenth Circuit), but her rebuke to the Obama administration’s underlying rationale for the contraception mandate, as reported by The Hill’s Julian Hattem, was pretty strident,:

Brown wrote that “it is clear the government has failed to demonstrate how such a right — whether described as noninterference, privacy, or autonomy — can extend to the compelled subsidization of a woman’s procreative practices.”
She added that denying coverage of contraception would not undermine the Affordable Care Act’s requirements that health insurance provide preventative care.

As Denniston noted, the Supremes will be sorting through the lower-court decisions directly. If that were not the case, today’s decision would be a cause for particular alarm because of the traditional deference lower courts pay to the D.C. Circuit.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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