Friday, November 1, 2013
DC Circuit Denies Injunction of Federal Contraceptive Mandate to For-Profit Corporations, but Grants it to the Companies' Individual Owners
SCOTUS Blog: A split ruling on birth-control mandate, by Lyle Dennison:
Taking a split approach, the D.C. Circuit ruled on Friday that profit-making corporations cannot make a religious challenge to the new health care law’s mandate that workers get birth-control and related medical coverage; however, if the firm is owned by only a few individuals, they can challenge it to defend their own religious objections, and they may well win. The two major parts of the ruling split the three judges in differing ways.
The Supreme Court already has three cases awaiting its attention on the Affordable Care Act’s contraception coverage mandate — with differing outcomes in lower courts — and the somewhat unusual approach taken by the D.C. Circuit on Friday may simply add an additional impetus for the Court to take on the issue in the current Term. . . .
This passage of the court's opinion seems question-begging:
If the companies have no claim to enforce—and as nonreligious corporations, they cannot engage in religious exercise—we are left with the obvious conclusion: the right belongs to the Gilardis, existing independently of any right of the Freshway companies.
The court assumes that there must be a "claim to enforce," but why must that be so? Why isn't there simply no right, given that the Gilardis chose to incorporate, and it is the corporation that is subject to the mandate? For more on this, see Caroline Corbin's essay on this issue.