A federal court ruled against the contraceptive mandate. Here’s what happens next.

July 28, 2012

The U.S. District Court for Colorado on Friday blocked the Obama administration from requiring an air-conditioning company in Colorado to provide no co-pay contraceptives to its employees, as the Affordable Care Act directs.

It was, as Sam Baker points out, the first time a federal court has ruled against that provision of the health-care law.

It's not yet, however, exactly a victory for the contraceptive mandate's opponents: The injunction is specific to that one company, and it holds only until the judge can reach a verdict on the case's merits. Still, it could mark the start of a long period of litigation involving one of the health-care law's most polarizing provisions.

Hercules v. Sebelius is a case brought by Hercules Industries, a Colorado-based air-conditioning company. The four siblings who own the business say they oppose contraceptives -- such medications are not included in their current health coverage plan -- and "seek to run Hercules in a manner that reflects their sincerely-held religious beliefs."

The health-care law's required coverage of contraceptives without co-pay is slated to come into effect next week, on Aug. 1. Religious institutions that primarily serve individuals are exempt from the requirement. Those that are faith-driven but tend to have workers outside their faith must comply, but got a one year reprieve. Hercules, as an air-conditioning company, does not fall into either category.

Hercules is challenging the birth control mandate as a First Amendment violation, inhibiting its ability to practice religion freely. The company also argues that the mandate violates the Religious Freedom Restoration Act, or RFRA, a law from the 1990s that is meant to afford greater legal protection to religious institutions from federal requirements that "substantially burden" their ability to practice religion.

The question before the judge was, essentially: Should the requirement be blocked until the case is decided, or should it be allowed to come into effect as court proceedings go forward?

Judge John Kane took the former opinion, saying that he did see a possibility that this mandate could represent a "substantial burden" on Hercules Industries' ability to practice religion and, as such, should be held up until a verdict was reached. He was careful, however, to specify that his ruling applied only to this one business.

"It does not," he wrote, "enjoin enforcement of preventive care for any other party."

That leaves Kane, an appointee of President Jimmy Carter, still to decide on the actual merits of the case -- and he has already shown some skepticism of the government's case for the contraceptive mandate in his initial writing.

One issue he writes about in detail has to do with the Religious Freedom Restoration Ac. If a religious organization can prove that a "substantial burden does exist" on their right to practice their religion, RFRA does give the government a way to fight back: It can argue that, while the law is burdensome, it achieves a compelling government interest in the least restrictive way possible.

Kane, in this document, doesn't necessarily seem to buy the government's argument that it has taken the least restrictive approach. Couldn't it, for example, just provide free contraceptives itself, taking employers out of the matter altogether?

"Defendants have failed to adduce facts establishing that government provision of contraceptives would necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventive health care to women," Kane writes. "Once again, the existence of analogous programs heavily outweighs such an argument."

This is still a bit of tea-leaf reading right now -- we won't know the verdict until, well, the judge actually issues one. What we do know, however, is this: The judge saw something in the plaintiff's arguments in this case compelling enough to hold off on enforcing the contraceptive mandate for at least one company. We'll soon learn whether they're compelling enough for him to grant the challengers a win.

For those who want to take a deep dive into this, the full text of the court decision is available below:

http://www.washingtonpost.com/blogs/ezra-klein/files/2012/07/Newland-_Hercules-Industries_-v-Sebelius-Order-Granting-Preliminary-Injunction.pdf

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