A Guide to the Supreme Court's Review of the Contraceptive Coverage Requirement
Executive Summary
U.S. Const. Amend. I, Free Exercise Clause: “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.”
Background
45 CFR § 147.30 (B): “For the purposes of this subsection, a “religious employers” is an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization; (2) The organization primarily employs persons who share the religious tenets of the organization; (3) The organization serves primarily persons who share the religious tenets of the organization; and (4) The organization is a non-profit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986 as amended.”
Federal Register, Vol. 78, No. 127, July 2, 2013 at page 39873
26 CFR § 54.9815-2713A; 29 CFR § 2590-2713A; 45 CFR § 147.31
A participating issuer offering a plan through a Federally-facilitated Exchange may qualify for an adjustment in the Federally-facilitated Exchange user fee for payments made for contraceptive services for employers that self-certified for the accommodation. Adjustments of Federally-Facilitated Exchange User Fees:45 CFR § 156.50(d) and 156.80(d).
Legal Challenges
In two cases, the Eighth Circuit has granted preliminary injunctions pending appeal but without much discussion of the issues: O’Brien v. U.S. Department of Health and Human Services, Annex Medical, Inc. v. Sebelius
Brief for the Appellees (HHS) for Hobby Lobby case in 10th Circuit Court of Appeals filed March 13, 2013, at pages 33-40.
Hobby Lobby brief appealing to the 10th Circuit Court of Appeals filed February 11, 2013 at page 47.
Citizens United v. Fed. Election Comm’n., 558 U.S. 310, 365 (2010).
See Conestoga Wood Specialties brief in Third Circuit Court of Appeals filed March 15, 2013, at pages 23 and 33. See Hobby Lobby brief in Tenth Circuit Court of Appeals filed February 11, 2013 at pages 33-4.
On December 2, 2013, the Supreme Court denied certiorari for Liberty University v. Lew. Liberty University filed a lawsuit challenging other aspects of the ACA before the final regulations on the contraceptive coverage requirement were issued. Liberty University added the challenge to the contraceptive coverage requirement late in the litigation process.
Appendices
The Sixth Circuit ruled the same way in Eden Foods Inc. v. Sebelius.
In two cases, the Eighth Circuit has granted preliminary injunctions pending appeal but without much discussion of the issues: O’Brien v. U.S. Department of Health and Human Services, Annex Medical Inc. v. Sebelius.
The Tenth Circuit issued similar decisions in Armstrong v. Sebelius and Newland v. Sebelius.