Yesterday (Friday Nov 16), U.S. District Judge Reggie Walton granted a preliminary injunction barring enforcement of the contraceptive coverage mandate that was part of the regulations implementing the Affordable Care Act (ACA). There is lots of news coverage (e.g., HuffPo and WaPo), but as usual, the news organizations do not link to the opinion. For your convenience, I’ve linked to it in the prior sentence, and provide some very preliminary observations below the fold.
The plaintiff (Tyndale, a religious publishing house) apparently does not object to the contraception mandate generally, but only to its inclusion of “drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo.” That is to say that this case is more about mandating that they pay for abortions than for contraception, on their theory.
It is also worth mentioning that most of the analysis in the opinion proceeds not directly under First Amendment, but instead under the Religious Freedom Restoration Act (RFRA), which forbids the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government can “demonstrate that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a), (b). As the district court explains, Congress passed the statute after Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), to create a theory of relief that the Supreme Court said did not exist under the Constitution alone. I’m not an expert on religious freedom law, but to the extent that this is really merely a statutory claim, it is interesting that a prior Congress (that enacted RFRA) seems to be limiting what a subsequent Congress (that enacted ACA) can do. I’d love to hear from some experts in that area.
Interestingly for health law scholars, the district court relied heavily on the distinction between whether the plaintiff-employer had purchased health insurance through a group plan, as in O’Brien v. HHS, __ F. Supp. 2d __, 2012 WL 4481208 (E.D. Mo. 2012) (where the RFRA claim failed), versus whether the plaintiff-employer was instead self-insured. The Court found that in the context of a self-insuring employer, the mandate created more of a burden on religion, since the payments for contraception/abortions would be more direct.