We now have a serious split of authority with respect to the women’s preventive care services mandate set forth in the Patient Protection and Affordable Care Act (“ACA”)

On November 2nd, we reported that a second federal court (in Michigan) had enjoined the application of the rule of the Patient Protection and Affordable Care Act (“ACA”) that would have required a “secular, for-profit, family owned and operated corporation” owned by a practicing Catholic to provide employee health insurance that covers contraception. 

The owner contended that it was contrary to Catholic doctrine to use, pay for, or support the use of contraception, and that having his company provide or participate in health insurance that includes providing contraceptives (or else incur a penalty) violates his sincerely-held religious beliefs and substantially burdens his free exercise of religion.

An Oklahoma federal court has just issued a decision directly at odds with the Michigan one, demonstrating the split among federal courts over the rights of for-profit, secular employers to challenge the validity of the ACA’s women’s preventive care services mandate.  The Court denied a similar injunction motion filed by Hobby Lobby Stores and Mardel , both for-profit, secular corporations owned by a family management trust whose trustees are practicing Christians. 

The Court held that Hobby Lobby and Mardel, as secular, for-profit companies, do not satisfy the ACA’s definition of a “religious employer,” and concluded that plaintiffs had no likelihood of succeeding on the merits of their claims.

We reacted with skepticism to the earlier case reported on November 2nd, questioning whether an owner’s religion can be imputed to a corporation, or that the ACA violates either the Religious Freedom Restoration Act (known as “RFRA”) or the First Amendment.  Given the split in decisions, we have even more reason now to anticipate an ultimate decision from the Supreme Court.