Contraceptives mandate left intact, for now

Lyle Denniston – ScotusBlog – 12/26/12

Supreme Court Justice Sonia Sotomayor refused on Wednesday
afternoon to block enforcement of the new federal health care law’s
mandate that profit-making companies begin providing free birth-control
drugs and methods for their women workers, beginning next week.  In a four-page opinion,
Sotomayor ruled that an Oklahoma City family and its religion-oriented
businesses did not qualify for a Court order against the mandate while
its court challenge goes forward.

This marked the first time that the Supreme Court has been drawn
into a nationwide controversy over the contraceptives mandate.  More
than forty lawsuits have been filed against that requirement by
non-profit religious schools, colleges, and hospitals, and by
religion-oriented, profit-making companies.   Justice Sotomayor, noting
that the lower courts that have ruled so far on pleas for emergency
court orders have reached mixed results, concluded that the Hobby Lobby
family’s right to an injunction could not meet the rigorous standard
that it be “indisputably clear.”   (The Hobby Lobby challenge was
discussed in this post.)

The kind of remedy the Hobby Lobby and its owners had sought — an
injunction pending appeal — can only be issued if it is necessary to
protect the Supreme Court’s authority to rule ultimately on the
constitutional challenge, or if the challengers’ right to such a remedy
is clear without a doubt, Justice Sotomayor noted.  She stressed that
she was not ruling on whether the constitutional challenge ultimately
would succeed, and noted that the Court had not previously ruled on
whether constitutional or other legal protection for religious rights is
available for closely held, for-profit corporations and their
controlling shareholder when they object as an expression of their faith
to mandatory employee benefits.

Hobby Lobby, an arts and crafts retail chain, and a related chain of
Christian bookstores, Mardel, Inc., have argued that they will face
heavy fines, perhaps reaching $1.3 million for each day they fail to
obey the contraceptives mandate.  Sotomayor noted that claim, but ruled
that it was not sufficient to satisfy the requirements for an
injunction.  Even without such an order, the Justice wrote, the
challengers may continue with their legal claims in the lower courts and
seek Supreme Court review later, if they wish.

A federal judge in Oklahoma and the Tenth Circuit Court based in
Denver had previously refused the challengers’ requests to bar
enforcement of the mandate.