In An Ominous Sign For Women Workers, Full Federal Appeals Court Agrees To Hear Birth Control Case

Last December, a panel of the United States Court of Appeals for the Tenth Circuit denied a request from crafting retail chain Hobby Lobby, which sought to temporarily block Obama Administration rules requiring most employer-provided health plans to cover birth control. Hobby Lobby claimed that the religious liberties protected by the Constitution and federal law extend not only to a religious person’s own conduct, but they also effectively enable an employer to restrict someone else’s access to birth control by denying them benefits guaranteed by the law. The panel’s decision rejected this argument.

Yesterday, however, the full Tenth Circuit agreed to hear the case in an unusual nine-judge hearing — a procedure known as “en banc.” Typically, federal appeals are heard by three-judge panels, and this is especially true when no such panel has fully considered the case on the merits. The court’s previous order concerned a preliminary motion seeking a temporary injunction, not a final consideration of the case.

The court’s decision to hear the case en banc is an ominous sign for women in the workforce. More often than not, courts of appeals agree to hold an en banc hearing only when a majority of the court’s judges disagree with a panel’s previous disposition of a case. Even if that was not the motivation behind this particular decision to en banc this particular case, the fact remains that 6 of the Tenth Circuit’s 10 active judges are Republican-appointees (although one of the Republicans, Judge Jerome Holmes, is recused).

It should also be noted that the fate of the birth control rules would likely be much brighter in the Tenth Circuit if the White House was swifter at nominating judges and if the Senate had pushed through real filibuster reform that would have prevented Senate Republican obstruction of the President’s nominees. Two seats on the Tenth Circuit are vacant, and President Obama has yet to nominate anyone to fill these seats.

One of the most surprising things about the lawsuits challenging the Obama Administration’s birth control rules is how quickly many judges decided they object to the rules when that would have been a fringe position just a few years ago. In 2004, the California Supreme Court overwhelmingly rejected a similar challenge to a similar state birth control law, with five of the court’s six Republicans voting to uphold the law even under the strictest level of constitutional scrutiny. Only then-Justice Janice Rogers Brown, a future George W. Bush-appointee to the federal bench who once compared liberalism to “slavery” and Social Security to a “socialist revolution,” voted to strike down the birth control law.

Similarly, the U.S. Supreme Court held more than 30 years ago that religious liberty does not allow an employer to “impose the employer’s religious faith on the employees,” such as by denying benefits to the employee that are protected by law. As the Court explained in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

At one point, the Court briefly narrowed the scope of religious liberty protected by the Constitution much further, in a case called Employment Div. v. Smith, although that decision was partially overturned by a law known as the Religious Freedom Restoration Act (RFRA). The author of Smith and its very narrow concept of religious liberty: that dastardly liberal Antonin Scalia.

What the Religious Freedom Restoration Act “restored” was the same legal regime that existed prior to Smith, and that drove cases like Lee. So there should be little doubt that the Obama Administration’s birth control rules are legal under existing law. Nevertheless, you go to court with the judges you have, not with judges who are necessarily eager to follow the law. The full Tenth Circuit’s decision to hear the birth control case does not bode well for women’s access to birth control.