A pattern developing

UPDATE: On Friday, the 8th U.S. Circuit Court of Appeals issued a preliminary injunction against the contraceptive mandate on behalf of Annex Medical. The Catholic-owned company, which manufactures medical devices, lost its bid for an injunction at the district court level. The 8th Circuit said the district court in its ruling against Annex misunderstood the precedent that came from another 8th Circuit ruling in an earlier mandate challenge (O’Brien Industries v. HHS). The 8th Circuit clarified both Annex and O’Brien Industries qualified for a preliminary injunction.

Annex is unique in that it only has 16 full-time employees, so the owner isn’t required to provide health insurance. The healthcare law requires employers provide health insurance only if they have more than 50 employees, but Annex’s Catholic owner, Stuart Lind, said his faith compels him to provide health insurance coverage to his employees. He objects to contraceptive, sterilization, and abortifacient coverage.

The Annex ruling gives religious business owners an 11-3 record in courts.

EARLIER STORY: On Wednesday, the 7th U.S. Circuit Court of Appeals granted an injunction against the federal government's health insurance contraceptive mandate to Grote Industries, a Catholic-owned business, reversing a lower court’s ruling that earlier dismissed the business’ lawsuit. (Download a PDF of the 7th Circuit's opinion.)

Grote, which creates vehicle components, is a family-owned company based in Indiana. The company self-insures its 1,148 full-time employees, and the Grote family objects to the mandate’s required coverage for contraceptives, abortifacients, and sterilization.

“[T]he government’s minimalist characterization of the burden continues to obscure the substance of the religious liberty violation asserted here,” the court wrote in its opinion. “[T]he government has not, at this juncture, made an effort to satisfy strict scrutiny. In particular, it has not demonstrated that requiring religious objectors to provide cost‐free contraception coverage is the least restrictive means of increasing access to contraception.”

The government argued, like it has in other cases, that the mandate does not violate the family’s religious liberty because the company is a separate entity that doesn’t qualify for religious liberty protections. The court rejected that argument, citing the U.S. Supreme Court decision in Citizens United v. Federal Elections Commission, which granted First Amendment protection to corporate speech.

“Although we again reserve plenary review of the merits for later in this appeal, for the reasons explained more thoroughly in our order in Korte, we conclude that the Grote Family and Grote Industries have established a reasonable likelihood of success on the merits of their [Religious Freedom Restoration Act] claim,” the court wrote. “We also conclude that they will suffer irreparable harm absent an injunction pending appeal, and the balance of harms tips in their favor.”

One judge on the three-judge panel dissented.

The latest ruling brings the number of religious businesses that have won injunctions against the contraceptive mandate to 10. Four businesses have, for now, lost their suits in court. The 7th Circuit joined the Grote case with the case of another Catholic business, Korte & Luitjohan Contractors, so the two cases will be considered together on the merits. Korte won an injunction from the same panel of 7th Circuit judges in late December. The judges granted the injunction to the Grote family on the same analysis as the Korte decision. (Download a PDF of the Korte decision.)

The 7th Circuit noted that Grote’s case is even stronger than Korte’s because the business has never covered contraceptives. Korte unknowingly covered contraceptives until the mandate came out, when the business owners examined their coverage and removed contraceptives.

In the Korte decision, the 7th Circuit criticized the 10th U.S. Circuit Court of Appeals’ ruling against Hobby Lobby over the same matter. The 10th Circuit said Hobby Lobby’s evangelical owners experienced no violation of their religious liberty because health insurance coverage wasn’t a direct payment for contraceptives. The 7th Circuit disagreed.

“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,” the judges wrote.

More circuit court rulings on the contraceptive mandate mean the cases are inching toward U.S. Supreme Court consideration, especially since circuit courts (like the 7th and the 10th) disagree in their rulings. Still, no circuit courts have jumped into the merits of the lawsuits so far. It’s possible that the Supreme Court could take up appeals from the circuit courts on these cases in its next term, which begins in October.

Religious business owners court scorecard

Courts have granted preliminary injunctions against the contraceptive mandate for:

Courts have denied injunctions for: