In an order yesterday overturning the district-court ruling that I criticized a week ago, a divided panel of the Seventh Circuit granted the owners of a for-profit corporation an injunction pending appeal against the HHS mandate. The panel majority succinctly got right the point that has been the primary source of division among judges in these cases:
The government also argues that any burden on religious exercise is minimal and attenuated, relying on a recent decision by the Tenth Circuit in Hobby Lobby Stores, Inc. v. Sebelius. Hobby Lobby, like this case, involves a claim for injunctive and declaratory relief against the mandate brought by a secular, for-profit employer. On an interlocutory appeal from the district court’s denial of a preliminary injunction, the Tenth Circuit denied an injunction pending appeal, noting that “the particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity condemned by plaintiff[s’] religion.” With respect, we think this misunderstands the substance of the claim. The religious-liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services. [Slip op. at 4-5 (emphasis in original; citations omitted.]
The Seventh Circuit’s treatment, in both the majority and the dissent, is the most thorough so far among the four courts of appeals that have addressed the issue. The Seventh Circuit joined the Eighth Circuit in granting injunctive relief pending appeal, while the Sixth Circuit yesterday (in an order without opinion, I believe) joined the Tenth Circuit in denying relief.