Five Appellate Court Decisions Regarding The ACA Birth Control Mandates Have Created A Deep Circuit Split, Increasing the Odds for Supreme Court Review

We previously described and analyzed the U.S. Court of Appeals for the Tenth Circuit’s en banc decision in Hobby Lobby Stores, Inc. et al. v. Sebelius, No. 12-6294 (10th Cir. June 27, 2013), which held that for-profit religious employers possessed standing under the Religious Freedom and Restoration Act (RFRA) to challenge certain birth control mandates contained in the Patient Protection and Affordable Care Act (ACA). The mandates generally require employers to provide some methods of birth control—such as Plan B and intrauterine devices—that arguably prevent implantation of a fertilized egg. As we noted, the RFRA provides, as a general rule, that the federal government “shall not substantially burden a person’s exercise of religion.” Since the Hobby Lobby decision was issued, four federal appellate courts have also addressed whether the RFRA or the First Amendment’s Free Exercise Clause allows for-profit employers to challenge the birth control mandates contained in the ACA, and the U.S. Supreme Court looks likely to take up the issue soon.