Voting almost entirely on party lines, the United States Court of Appeals for the Third Circuit announced today that it will not disturb a prior decision upholding the Obama Administration’s rules ensuring that most employer-provided health plans will cover birth control. Last month, a three-judge panel upheld these rules against a religious employer’s claim that it could refuse to comply with the law. Today’s order provides that the court’s full complement of 12 active judges will not reconsider the panel’s decision.
As a practical matter, today’s order is unlikely to matter. The Third Circuit panel’s decision conflicts with a Tenth Circuit opinion that took an unusually expansive view of the power of corporate employers to assert religious objections, and the Supreme Court typically agrees to hear cases where there is a conflict between two federal circuit courts. Nevertheless, today’s order is instructive because it demonstrates how partisan this issue has become. Four of the Third Circuit’s five Republicans voted to rehear the case, while six of the court’s seven Democrats did not vote for a rehearing.
This issue only became partisan after Republican elected officials began expressing their opposition to the Obama Administration’s rules. When a similar question involving the right of religious employers to ignore a birth control law arose in California in 2004, five of the California Supreme Court’s six Republicans voted that religious employers must comply with the law.