Bench Memos

Seventh Circuit Ruling Against HHS Mandate

Having been out, I’m only now highlighting this important Seventh Circuit ruling (in Korte v. Sebelius) from late last Thursday against the HHS contraception mandate. The ruling comes in two cases consolidated on appeal, each involving a Catholic family and its closely held business corporation.

The Seventh Circuit panel was divided. The impressive majority opinion by Judge Diane Sykes (joined by Judge Joel Flaum) rules that the plaintiff individuals and corporations are entitled to preliminary injunction relief against the HHS mandate. Among other things, Judge Sykes rules that (1) the individuals have standing to challenge the HHS mandate (slip op. at 22-25; the dissenter agrees on this narrow point—see slip op. at 78); (2) closely held, for-profit corporations are “persons” within the meaning of the federal Religious Freedom Restoration Act (slip op. at 35-54); (3) the HHS mandate substantially burdens the plaintiffs’ exercise of religion (slip op. at 54-60); and (4) even on the assumption that the HHS mandate furthers a compelling governmental interest, it does not do via the means that is least restrictive of plaintiffs’ religious liberty (slip op. at 60-64).

Judge Ilana Rovner’s 90-page dissent vigorously takes issue with the last three points.

When I have had time to digest the opinions, I may offer some more extensive commentary.

Again, cases involving challenges to the HHS mandate are already pending before the Supreme Court, and review is almost certain to be granted in at least one of those cases (with the others held).

For what it’s worth: Judge Sykes is a Bush 43 appointee; Judge Flaum is a Reagan appointee; and Judge Rovner is a Bush 41 appointee.

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