Last month, George H.W. Bush-appointed Judge Carol Jackson rejected a challenge to the Obama Administration’s rules ensuring that employer-provided health plans include contraceptive coverage. In a brief, one sentence order yesterday, the conservative United States Court of Appeals for the Eighth Circuit temporarily stayed Judge Jackson’s decision. This is the first time a court of appeals has taken any action against the birth control rules, although this stay order will only remain in effect until the court has enough time to fully consider the case.
Yesterday’s order is not surprising, as the Eighth Circuit is the most Republican federal appeals court in the country. Nine of the court’s eleven active judges are Republican appointees, including six appointed by President George W. Bush. Notably, Judge Morris Sheppard Arnold, an H.W. Bush appointee, dissented from yesterday’s order.
Nevertheless, the order is concerning because this case does not involve a religious organization or similar group that has a relatively strong claim that it may assert a religious objection to laws protecting birth control access. Rather, in this case a for-profit company engaged in “the business of mining, processing, and distributing refractory and ceramic materials and products” claims that it is somehow able to impose the religious views of its owners upon its employees.
In other words, yesterday’s order suggests that two judges on the Eighth Circuit want to go far beyond the Supreme Court’s infamous holding that corporations are people, and hold that a for-profit corporation can be Catholic.