3rd Circuit Denies Stay Pending Appeal In Small Business Challenge to Contraceptive Coverage Mandate (Corrected)

In a 2-1 decision, the U.S. 3rd Circuit Court of Appeals refused to grant a stay pending appeal in a small business' challenge to the Affordable Care Act contraceptive coverage mandate. In Conestoga Wood Specialties Corp. v. Secretary of U.S. Dept. of Health and Human Services, (3rd Cir., Feb. 7, 2013), Judge Rendell in her majority opinion concluded that the Mennonite owners of a wood specialties manufacturing company had failed to show a reasonable likelihood of success on the merits of their free exercise, RFRA or Establishment Clause claims. (See prior related posting.)

Judge Garth, concurring, emphasized that:

for-profit corporate entities, unlike religious non-profit organizations, do not — and cannot — legally claim a right to exercise or establish a "corporate" religion under the First Amendment or the RFRA.

He also agreed with the district court that:

It would be entirely inconsistent to allow the Hahns to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.

Judge Jordan dissented, arguing first that injunctive relief should be available "if the threatened harm is particularly great, despite a showing on 'likelihood of success' that is less than would usually be required." He added:

The government is at pains to point out ... that the “preventive health services provisions [of the ACA] require coverage of an array of recommended services...."  [However] "There’s just one fatal dish," is non-responsive to [plaintiffs'] point, which is that their religious liberty is directly threatened by the government’s edict....

An entity’s incorporated status does not ... alter the underlying reality that corporations can and often do reflect the particular viewpoints held by their flesh and blood owners....

Policymic reports on the decision. [Thanks to Jeff Pasek for the lead.] 

[Note: An earlier version of this posting contained 2 errors.  It referred in the body of the post to the incorrect circuit.  It also had an incorrect date for the decision. That incorrect earlier date stemmed from the fact that 3rd Circuit opinions contain, without explanation, the date on which the clerk's office forwards the motion to the 3-judge panel. I incorrectly used that  date. Thanks to Howard Bashman for the corrections.]