Cert Petitions Filed in Contraception Mandate Cases

Petitions for certiorari were filed in two cases challenging the Obamacare contraception mandate last week.  Both cases involve private, for-profit employers.  The first was filed by Conestoga Wood Specialties Corporation, seeking review of the decision by the U.S. Court of Appeals for the Third Circuit holding, among other things, that corporations may not raise free exercise claims under the Religious Freedom Restoration Act (RFRA).  The Third Circuit voted against rehearing the case en banc 7-5.  The second was filed by the Solicitor General in Sebelius v. Hobby Lobby Stores seeking review of the U.S. Court of Appeals for the Tenth Circuit’s conclusion that a private, for-profit corporation can raise RFRA free exercise claims.

As Lyle Denniston reports at SCOTUSBlog, the filing of these two petitions makes it likely that the Supreme Court will hear a case on the contraception mandate this term.  Don’t be surprised if the High Court does not fully resolve the question, however.  It’s entirely possible the Court could decide only whether for-profit corporations may raise RFRA free exercise claims.  So, for instance, if the Court were to decide with Hobby Lobby on this point, it might opt to remand the case for a fuller consideration of the merits of the RFRA claim.

Meanwhile, the U.S. Court of Appeals for the Sixth Circuit ruled against a for-profit employer’s challenge to the contraception mandate in Autocam Corp. v. Sebelius.  Although it reached the same result as the Third Circuit, the sixth Circuit adopted a slightly different analysis, concluding that a for-profit corporation is not “a ‘person’ that can exercise religion for purposes of RFRA.”  Ed Whelan critiqued the Sixth Circuit’s reasoning at Bench Memos.