Tomorrow afternoon, in an unusual procedure, the en banc Tenth Circuit will consider Hobby Lobby Stores, Inc. v. Sebelius, a challenge to a Department of Health and Human Services regulation requiring employers to provide insurance coverage for contraceptives and abortifacient drugs, despite the fact that it violates the religious and ethical beliefs of many employers. The Tenth Circuit’s orders granting initial en banc argument and setting the date are here and here.
Numerous challenges to the regulation have been filed around the country, and in most cases, the challengers have prevailed in persuading courts to grant injunctions against the mandate. A two-judge panel of the Tenth Circuit, however, erroneously denied the Hobby Lobby’s request for an injunction in this decision last year. The Tenth Circuit now has a chance to correct its error, and join the majority of courts that have, thus far, properly granted injunctions against the mandate.
When a case like this arises, most immediately think of the First Amendment’s Free Exercise Clause. While the HHS may indeed violate the First Amendment, the courts may never reach that question because a federal statute, the Religious Freedom Restoration Act (RFRA), provides greater protection to religious liberty than the First Amendment. RFRA was passed in 1993 by a Democratically-controlled Congress, and signed into law by President Clinton. Continue reading