In a decision that all but guarantees that Obama Administration rules promoting access to birth control will be considered by the Supreme Court, the United States Court of Appeals for the Third Circuit upheld the requirement that most workers’ health plans cover birth control on Friday, rejecting a challenge by a religious employer claiming it could refuse to comply with the law. Judge Robert Cowen, who was appointed to the bench by President Ronald Reagan, wrote the court’s opinion. George W. Bush appointee Kent Jordan dissented from the panel’s decision.
Cowen’s opinion was routed in the proposition that a for-profit corporation cannot claim that its religious liberties are being violated because “we simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion.” The court also rejected the claim that, because the Supreme Court’s corporate election spending decision in Citizens United held that corporations have certain rights under the First Amendment’s free speech clause, that it somehow also follows that they can assert religious rights. According to Cowen’s opinion, “we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.”
Ultimately, however, the most important aspect of this opinion its not its reasoning — which the justices will feel free to embrace or ignore as they see fit. It is the fact that the Third Circuit’s decision directly conflicts with an earlier opinion by the conservative Tenth Circuit, which took a fairly maximalist position on the ability of corporations to assert religious objections to the law. The Supreme Court generally agrees to hear cases when “a United States court of appeals has entered a decision in conﬂict with the decision of another United States court of appeals on the same important matter,” so it is now exceedingly likely that the justices will weigh in on these birth control rules.
If the Roberts Court follows prior Supreme Court precedent, which establishes that “[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,” then the justices will uphold the rules requiring most employer-provided plans to cover birth control. As the Supreme Court explained in United States v. Lee, religious liberty does not allow an employer to “impose the employer’s religious faith on the employees.”
Such an outcome, however, appears unlikely. While Cowen is not the first Republican-appointed judge to vote to uphold the birth control rules, most judges have split on party lines in resolving these cases. (An Obama-appointed Tenth Circuit judge, Robert Bacharach, also largely sided against the birth control rules, although the President’s decision to nominate Bacharach likely stems from the fact that the Senate’s archaic traditions allowed Oklahoma’s Republican senators to veto nominees to this seat).
So, the birth control rules are likely to have a rough ride before the Supreme Court, which has five Republicans and only four Democrats.