In my first post of the year back on January 3, I reported on how a divided Sixth Circuit panel on New Year’s Eve had granted a motion filed by Michigan Catholic Conference and Catholic Family Services to halt the so-called contraception mandate by the Department of Health and Human Services that went into effect under the Patient Protection and Affordable Care Act, Public Law 111-148See Michigan Catholic Conference, et al. v. Sebelius, et al. (6th Cir. Case No. 13-2723) (PDF).  The contraception mandate is the requirement under the new health care statute requiring employers to cover contraceptives in their employee health care plans.  The Michigan plaintiffs claimed that the contraception mandate is a direct attack on their religious freedoms and violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb, et seq.  Two weeks after granting the plaintiffs’ motion for an injunction pending appeal, the Sixth Circuit granted a motion to consolidate the Michigan case with a separate case from the Middle District of Tennessee involving a similar legal challenge to the Affordable Care Act.  Both set of plaintiffs argued before the Sixth Circuit that the contraception mandate violates the RFRA, the Free Exercise, Free Speech, and Establishment Clauses of the First Amendment, and the Administrative Procedure Act.

Earlier today, in 3-0 opinion written by Judge Moore, the Sixth Circuit affirmed the decisions by the Michigan and Tennessee district courts denying preliminary injunctions to all the plaintiffs on all claims.  See Opinion, Michigan Catholic Conference, et al. v. Burwell, et al. (6th Cir. Case Nos. 13-2723/6640) (PDF).  The Sixth Circuit agreed with the district courts that the contraception mandate does not substantially burden the plaintiffs’ free exercise of religion because all of the plaintiffs are eligible for either an exemption from the contraception mandate or an accommodation developed by the government for certain non-profits that object to the mandate on religious grounds.  The Sixth Circuit stated that “[b]ecause these [plaintiffs] may obtain the accommodation from the contraceptive-coverage requirement without providing, paying for, and/or facilitating access to contraception, the contraceptive-coverage requirement does not impose a substantial burden on these [plaintiffs'] exercise of religion,” and thus the plaintiffs did not demonstrate a strong likelihood of success on the merits of their RFRA claim.

The Sixth Circuit also went on to reject the plaintiffs’ First Amendment clams. Among other things, the panel concluded that the contraception mandate does not unconstitutionally compel speech because it does not require the plaintiffs to provide contraceptive counseling or otherwise to pay for it.  Nor could the plaintiffs convince the Sixth Circuit that the accommodation framework imposes an unconstitutional “gag order” by prohibiting an eligible organization from interfering with, or seeking to influence, a third-party administrator’s decision to provide contraceptives.  As the panel stated, the plaintiffs failed “to [tell] us what [they] want[] to say but fear[] to say.”  The Sixth Circuit also agreed with the district courts that because the contraception mandate is a neutral law of general applicability, it does not violate the Free Exercise Clause.  It further agreed that the mandate does not violate the Establishment Clause because even though its creates a distinction allowing some entities with a religious mission to obtain the exemption while others to obtain only the accommodation, the mandate does not favor a certain denomination or cause “excessive entanglement between government and religion.”  Finally, the Sixth Circuit found no merit in the plaintiffs’ claims under the Administrative Procedure Act (“APA”).  One of the plaintiffs’ APA claims had not been properly raised in (or decided by) the district court, and thus the panel declined to address it for the first time on appeal.

The plaintiffs probably will seek Supreme Court review of today’s Sixth Circuit’s decision, but the prospects for Supreme Court review are likely slim.  The High Court currently is considering legal challenges to the contraception mandate in two high-profile cases brought by for-profit businesses whose owners are raising religious-based objections to the mandate.  SeeSebelius v. Hobby Lobby Stores, Inc. (No. 13-354); Conestoga Wood Specialties Corp. v. Sebelius (No. 13-356).  Look for the opinions in these two high-profile cases to be handed down by the Supreme Court any day now.