After hearing arguments Friday, U.S. District Judge Joe Heaton issued an order temporarily exempting Hobby Lobby from complying with the contraception benefit in the Affordable Care Act, which requires it to offer insurance coverage for the morning-after pill and similar birth control or face steep fines. The ruling moves the national fight over the constitutionality of the contraception benefit a significant step closer to the Supreme Court, but also shows a deep divide within the federal judiciary over whether or not corporations have constitutional religious rights.
The terse, four-page order is the first to flatly bar the federal government from enforcing any part of the contraceptive benefit in the federal health-care law. Judge Heaton, who earlier had turned down an identical request by Hobby Lobby to delay enforcement (his request was overturned by the U.S. Tenth Circuit Court of Appeals), took the opportunity to jab back at the court of appeals, holding that Hobby Lobby had “newly recognized religious rights” that drove much of the conclusion to block enforcement, despite his earlier order refusing to do so. These “newly recognized religious rights,” Heaton’s order makes clear, stem from the Tenth Circuit’s ruling that business firms can take on the religious views of their owners and then exercise those rights on their own in the way they conduct their business operations.
Judge Heaton made clear that, thanks to the Tenth Circuit’s ruling, he had very little choice other than to grant Hobby Lobby’s request to block the benefit. He cited the fact that Hobby Lobby faced financial penalties that “could conceivably amount to $1.3 million” a day for violating the mandate, but also made a finding that the government had a “not insignificant interest” in providing the two companies’ employees with access to all federally approved contraceptive methods through a health insurance plan. However, even with the government’s significant interest in making contraception widely available and affordable, Judge Heaton held that the threat of financial penalties and the potential violation of religious rights outweighed the government’s “potential harm” should access be unavailable.
In addition to issuing the preliminary injection, the judge also stayed the case until October 1 to give the federal government time to consider an appeal. That means the government now has the option of appealing the order to the Tenth Circuit. But that court already has suggested it would block enforcement in an earlier ruling and had scheduled a hearing in another case challenging the benefit for October as well, meaning that even if the Obama administration doesn’t appeal this specific order, the Tenth Circuit will weigh in on the constitutionality of the benefit regardless.
Besides the Tenth Circuit, four other federal appeals courts have held hearings on the mandate, with another hearing in September. The clear fault line emerging in these legal challenges is this idea, fully embraced by the Tenth Circuit, that businesses have the ability to take on the religious beliefs of their owners. It’s a radical re-imagining of First Amendment religious rights made possible thanks to the Citizens United decision, which held corporations have certain First Amendment speech rights, including the right to spend money in elections. And as soon as next year, we could learn whether or not the Roberts Court, and Justice Anthony Kennedy in particular, is willing to extend those rights even further.