Two More Decisions In Challenges To ACA Mandate; 10th Circuit and Missouri District Court Have Divergent Views

In Hobby Lobby Stores, Inc. v. Sebelius, (10th Cir., Dec. 20, 2012), the U.S. 10th Circuit Court of Appeals refused to grant an injunction pending resolution of an appeal in a challenge by two closely-held  for-profit corporations and their Christian owners to the contraceptive coverage mandate under the Affordable Care Act.  The court concluded that plaintiffs had not demonstrated a substantial likelihood of success on the merits because it was unlikely that the mandate imposed a substantial burden on plaintiffs' exercise of religion:

other cases enforcing RFRA have done so to protect a plaintiff’s own participation in (or abstention from) a specific practice required (or condemned) by his religion.  We do not think there is a substantial likelihood that this court will extend the reach of RFRA to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship.

LifeNews reports on the decision. (See prior related posting.) In a press release, Becket Fund indicated that plaintiffs will now seek relief from the U.S. Supreme Court. UPDATE: Here is the petition to the Supreme Court for an injunction pending appellate review.

However, in American Pulverizer Co. v. U.S. Department of Health and Human Services, (WD MO, Dec. 20, 2012), a Missouri federal district court granted a preliminary injunction against enforcement of the contraceptive coverage mandate in a challenge filed by a group of metal recycling businesses owned by Evangelical Christians Paul and Henry Griesediek. (See prior posting.) The court held: "Plaintiffs have raised questions concerning their likelihood of success on the merits that are so serious and difficult as to call for more deliberate investigation." In reaching that conclusion, the court said in part:

Plaintiffs must either pay for a health plan that includes drugs and services to which they religiously object or incur fines.  Accordingly, the Court determines that there is a substantial likelihood that Plaintiffs will able to prove, on the merits, that the ACA substantially burdens Plaintiffs’ exercise of religion.

The Court notes that Defendants argue that Plaintiffs cannot show that the ACA substantially burdens any exercise of religion as the Griesedieck Companies are secular entities and, thus, cannot “exercise religion” under the RFRA. ... [T]here are many entities under which an individual can run a business, i.e. a corporation, partnership, LLC, closely-held subchapter-s corporation, or sole proprietorship.  Does an individual’s choice to run his business as one of these entities strip that individual of his right to exercise his religious beliefs?....

National Review reports on the decision.