Federal Judge: Private Employers Cannot Be Forced To Cover Contraceptives In Violation Of Religious Beliefs

An important ruling on the Obama Administration's contraceptive coverage mandate from a Judge in Colorado.

A Federal Judge in Colorado has issued a preliminary injunction against the implementation of the mandate issued by the Department of Health and Human Services requiring all employers to include contraceptive coverage in the health insurance they provide to employees. What’s interesting about the case, though, is that the Plaintiffs challenging the case were not Catholic institution, but individual private employers who happen to be Catholic:

A federal judge on Friday granted a temporary injunction sought by Catholic owners of a Colorado heating-and-cooling company who had objected to new federal requirements that they provide contraception coverage in workers’ health-insurance plans.

The decision is a victory for opponents of the birth-control coverage provision, which is part of President Barack Obama’s health overhaul. Starting Wednesday, most employers must cover contraception, including the morning-after pill and sterilization, without charging workers out-of-pocket fees. Some religiously affiliated employers, such as universities and hospitals, don’t have to comply for another year.

What’s significant about Friday’s decision is that it opens an avenue for nonreligious employers to challenge the requirement.

The Newland family of Colorado, who co-own the heating-and-cooling businessHercules Industries Inc., said the federal government would force them to violate their religious beliefs by requiring the company to cover birth control in workers’ insurance plans.

U.S. Judge John Kane in Denver said the requirements could violate the Religious Freedom Restoration Act, a 1993 statute that requires the federal government to consider the rights of faith groups when crafting policy. He gave the company a temporary injunction while the court considers their case further, and said it could not be subject to federal penalties for not complying during that time.

“These questions merit more deliberate investigation,” he wrote. “Defendants bear the burden of demonstrating that refusing to exempt Plaintiffs from the preventive care coverage mandate is the least restrictive means of furthering their compelling interest.”

The decision by Judge Kane only applies to the heating-and-cooling company. But other small businesses could apply for similar relief, said Matt Bowman, a lawyer for Alliance Defending Freedom, which represented the Newlands in the case.

Mr. Bowman also said that the decision would boost other challenges to the contraception provisions. Religious universities and charities, including the University of Notre Dame, have also sued the administration over the requirements. The Obama administration has said it will work with Catholic-affiliated institutions to try to reach a compromise, prompting two judges to toss out those cases.

“Right now, the first judge to rule on the merits of religious freedom ruled that religious freedom is more important than government mandates,” said Mr. Bowman.

It was just about a week ago that a Federal Judge in Nebraska dismissed a lawsuit filed by several states and a handful of Catholic-run institutions on the ground that the claims being made by the Plaintiffs were not yet ripe for consideration. In that case, the main argument the judge relied upon was the fact that the HHS has given religious institutions until August 2013 to comply with the law. Because of that, the Judge found that the parties had not shown that they were in danger of suffering an immediate harm from having to comply with a mandate that won’t go into effect for them for another years. As I noted at the time, this decision could potentially mean that all challenges by Church-run institutions would be delayed for at least a year, although that would require the judges those cases were before to agree with the reasoning of the Judge in Nebraska. That ruling can’t be applied in this case, though, because the mandate for private employers such as Hercules Industries went into effect immediately.

Since this is a Preliminary Injunction and not a final ruling on the merits, we will have to wait until after evidence has been taken for a final ruling. It’s possible that the Judge will ultimately rule in favor of the Government. Given the conclusions he’s reached at this stage, though, it is very clear that he’s highly skeptical of the Government’s position and disposed toward the Plaintiff’s view of the case. Consider, for example, his discussion of the balancing of the asserted public interest against the rights asserted by the Plaintiffs to be able to run their business without violating their religious beliefs:

Defendants argue that entry of the requested injunction is contrary to the public interest, because it would “undermine [their] ability to effectuate Congress’s goals of improving the health of women and children and equalizing the coverage of preventive services for women and men so that women who choose to do so can be part of the workforce on an equal playing field with men.” Defendants’ Response (doc. 26) at73. This asserted interest is, however, undermined by the creation of exemptions for certain religious organizations and employers with grandfathered health insurance plans and a temporary enforcement safe harbor for non-profit organizations.’

These interests are countered, and indeed outweighed, by the public interest in the free exercise of religion. As the Tenth Circuit has noted, “there is a strong public interest in the free  exercise of religion even where that interest may conflict with [another statutory scheme].” OCentro, 389 F.3d at 1010. Accordingly, the public interest favors entry of an injunction in this case.

On balance, the threatened harm to Plaintiffs, impingement of their right to freely exercise their religious beliefs, and the concommittant public interest in that right srongly favor the entry of injunctive relief. Although the less rigorous standard for preliminary injunctions is not applied when “a preliminary injunction seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,” Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006), the government’s creation of numerous exceptions to the preventive care coverage mandate has undermined its alleged public interest.8 Accordingly, I find the general rule disfavoring the relaxed standard inapplicable. Plaintiffs need only establish that their challenge presents “questions going to the merits . . . so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.”  Okla. Tax Comm’n, 455 F.3d at 1113.

The Judge then goes on to rely upon the provisions of the Religious Freedom Restoration Act to reach the conclusion that the Plaintiffs are likely to ultimately succeed in the case. Under the RFRA, the government is prohibited from “substantially” burdening “a person’s exercise of religion even if the burden results from a rule of general applicability.” The law was inspired in large part by the Supreme Court’s decision in Employment Division v. Smith in which the Court ruled two Native Americans could be denied unemployment compensation after being fired for drug use, even though the drug in question was peyote used in a Native American religious ceremony. Because of its far-reaching implications, united both religious and civil liberties groups and the law passed Congress on a largely bipartisan basis. There is one major exception in the RFRA, though, it says that the government may justify a substantial burden on the free exercise of religion if the challenged law: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

In this case, the Judge was very skeptical of the government’s argument that these exemptions applied, which poses a huge problem for them further down the line. With regard to the “compelling interest” part of the test, he pointed to the fact that HHS has already granted exemptions to the entirety of the “preventive care mandate” to some 190 million health care plans in the form of exemptions for small businesses and for so-called “grandfathered” health care plans. Because of that, he said, the government cannot show a compelling interest in requiring the Plaintiffs in this case to provide the mandated coverage. Additionally, the government failed to convince the judge that the mandate is the least restrictive means of accomplishing their stated goal of promoting women’s health. In their own briefs, the Plaintiffs had provided one alternative, the government could provide free contraceptives to women, and the judge was not convinced by the government’s attempt to rebut this as a viable alternative:

First, Defendants argue that because Plaintiffs’ alternative “would impose considerable new costs and other burdens on the Government and are otherwise impractical,” they should be rejected as not “feasible” or “plausible.” Brief in Opposition (doc. 26) at 44. Although a showing of impracticality is sufficient to refute the adequacy of a proposed alternative, Defendants have failed to make such a showing in this case. As Plaintiffs note, “the-government already provides free contraception to women.” Reply Brief in Support (doc. 27) at 38.

Defendants also argue Plaintiffs’ alternative would not adequately advance the government’s compelling interests. They acknowledge that Plaintiffs’ alternative would achieve the purpose of providing contraceptive services to women with no cost sharing, but argue that Plaintiffs’ alternative will not “ensur[e] that women will face minimal logistical and administrative obstacles to receiving coverage of their care.” Brief in Opposition (doc. 26) at 45. Although Plaintiffs argue that this amounts to a redefinition of Defendants’ compelling interest, it is instead a logical corollary thereto.16 Nonetheless, Defendants have failed to adduce facts establishing that government provision of contraception services will necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventive health care coverage to women. Once again, the current existence of analogous programs heavily weighs against such an argument.

Defendants bear the burden of demonstrating that refusing to exempt Plaintiffs from the preventive care coverage mandate is the least restrictive means of furthering their compelling interest. Given the existence of government programs similar to Plaintiffs’ proposed alternative, the government has failed to meet this burden.

Interestingly, Judge John Kane, the judge who wrote this opinion, was appointed by President Carter in 1977.

This case is remarkably similar to one that originated in Oregon, which I wrote about in February. In that case, a Federal Judge in Oregon ruled that pharmacist in Washington State cannot be forced to dispense the so-called “morning after pill” in violation of her religious beliefs. This decision was not based on the RFRA because the Supreme Court had decided in 1997 that the Act cannot be applied to the states. Instead, that case was hinged upon the Free Exercise Clause of the First Amendment. Nonetheless, as National Review’s Ed Whelen recognized at the time, the similarity in the arguments and conclusions reached by the judge suggested strongly that the RFRA would block the application of the contraceptive mandate against religious-run organizations at the very least, and potentially against private employers that objected to the mandate on religious grounds. Indeed, when Notre Dame and other Catholic institutions filed suit against the mandate earlier this year, they based a large part of their argument on the RFRA. This decision would suggest that they are standing on some fairly solid ground.

Judge Kane made clear in his opinion that the ruling only applies to the parties in this case. While that is true, it is likely to be cited as presuasive authority by Plaintiffs in other cases against the mandate. If the judges hearing those mandates find Judge Kane’s argument compelling, then the contraceptive mandate is likely to be in serious legal trouble. I was originally skeptical of the legal arguments against the mandate, but between this ruling and the Washington State case, it is quite clear that the opponents of the mandate have a strong case. How it turns out, of course, is something we’ll have to wait to find out.

Here is Judge Kane’s opinion for those interested.

Hercules et al v. Sibelius et al

FILED UNDER: Health, Healthcare Policy, Law and the Courts, Religion, US Politics, , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. PD Shaw says:

    This asserted interest is, however, undermined by the creation of exemptions for certain religious organizations and employers with grandfathered health insurance plans and a temporary enforcement safe harbor for non-profit organizations.’

    That’s pretty much exactly what I had commented was the reason it was more likely than not Obama would lose the court challenges. The gist of the law is to force government to use less restrictive alternatives. By providing less restrictive alternatives for some, but not others, Obama made the case for the alternative being widely available for everyone claiming a religious belief.

  2. Does this mean that Scientologists who own businesses don’t have to pay for medical insurance that includes mental health treatment (a federal requirement)? Does this mean that Christian Scientists who own businesses don’t have to pay for any medical insurance?

  3. al-Ameda says:

    The case could not be better made for a Single Payer Health Insurance system.

    America is a very dumbed down country.

  4. Davebo says:

    What al-Ameda said.

    But take it further. Workers Comp? Why should employers be forced to pay for Comp or retirement programs?

    Oh, wait, they aren’t in most parts of our nation. Those job producers are so burdened…

  5. rudderpedals says:

    RFRA was a reactionary populist dog’s breakfast that wouldn’t have crossed Hatch’s mind much less the floor of the Senate had the drug war not gotten so completely out of hand that states dragged unemployment (and workers) comp into the war that led to the peyote case.

    I suppose repealing RFRA is a non-starter. @al-Ameda‘s right, single payer will be the fix.

  6. PD Shaw says:

    In Illinois, private employers are exempt from providing contraceptive coverage if it contradicts the employer’s religious beliefs, regardless of whether the employer is associated with a religious organization or not. Link

    Indeed, Obama appears to have voted for the Illinois law when he was in the Illinois Senate since it passed 59 to 0. Link

  7. KariQ says:

    How about Jehovan’s Witnesses? Can they refuse to provide coverage that pays for blood transfusions? This could be a disastrous precedent.

  8. Commonist says:

    The freedom to hurt someone else’s freedom because Ganesh or whatever says so.

    My brain. Full of f**k.

  9. Gromitt Gunn says:

    This, like the pharmacist cases, is total insanity. Pharmacists – and other medical professionals – should be guided by their Codes of Professional Conduct – rather than their religious beliefs. And so long as we’re stupid enough to couple employment status and health care through the Internal Revenue Code, employers should have to choose between a Federally compliant health care plan or losing the tax-favored status of their health plan.

    The real answer is, of course, to decouple healthcare from employment.

  10. Scott says:

    I see there is no discussion of an individual’s rights, religious or otherwise. I don’t understand how the institution of a feudal-like system whereby employers can interfere with their employer’s personal beliefs can stand. The employer based health care system is going to be progressively weakened.

  11. DRS says:

    This is the kind of thing that is going to bite the God-botherers in the ass someday. They can never be brought to understand that other religions can also use this kind of argument against issues that they hold dear. And as a Catholic it bothers me that the bishops have grabbed at the short-term advantage rather than confront the growing gap between what they preach and what their parishioners practice. This kind of stubborness has never won out in the past and won’t this time either. Idiots.

  12. @DRS: I am curious what will happen if a Muslim business owner wants a special insurance plan that requires that female employees only go to female doctors.

  13. Phillip says:

    @Timothy Watson: Indeed, immediately the story about Islamic Louisiana charter schools jumps to mind. link

  14. Tony W says:

    @Gromitt Gunn: “The real answer is, of course, to decouple healthcare from employment.”

    Which will not happen in my lifetime. Imagine how many small business would start up and compete with existing interests once disgruntled employees were not tied to their jobs’ health coverage! This is a nightmare scenario for both parties.

  15. Pylon says:

    The one Inc no one has noticed is that this is a temporary injunction. Which means the judge only found that there is a “triable issue”. It is not a final decision on the merits.

  16. beth says:

    Ridiculous – health benefits are just that – benefits (which employees usually pay a fair share of anyway). So if I work for an employer who’s rabidly anti-vaccine (maybe from listening to too much Michele Bachmann) I’d have to pay for my kid’s vaccines myself even if I have insurance that I’m contributing to? Why not just say the objectionable stuff is being paid for out of my share and leave it at that? Do I have no say in something I contribute payment for? Suppose I decide to use my two week vacation benefit to visit Egypt and my Jewish employer deems it an unacceptable place to visit – can he withhold my vacation benefit? When does it end?

  17. Tony W says:

    This post has me imagining the lawsuits that will ensue when two 50/50 partners in a business disagree on some element of healthcare due to the dictates of their contradictory religious overlords. Maybe half the employees are covered for contraception and the other half get blood transfusions?

  18. Tsar Nicholas says:

    What’s sort of funny about this debate — in a black comedy sense — is that liberals are so airheaded they could not grasp the irony of being in support of a federal health insurance mandate that touches directly upon religious protocols. They can’t see the actual issue despite the obviousness of that issue.

    If the Feds can mandate that private Catholic employers provide health coverage for contraceptives then ipso facto the Feds could mandate that a private secular employer provide PTO to all its religious employees for each respective religious holy day on the calendar. Meaning for example that an atheist employer could be forced to pay its devout Catholic employees for taking off work for Ash Wednesday. Meaning for example that an atheist employer could be forced to pay its evangelical employees for not working on Good Friday. So on, so forth. Same principles, merely in reverse. Is that really the sort of precedent the left wants to set? Speaking of which, can you fathom the high dudgeon mode reaction from the left if an evangelical Protestant president’s administration went in that direction?

  19. al-Ameda says:

    @Tsar Nicholas:

    What’s sort of funny about this debate — in a black comedy sense — is that liberals are so airheaded they could not grasp the irony of being in support of a federal health insurance mandate that touches directly upon religious protocols.

    What’s interesting is that many conservatives are so air-headed that they can’t see that de-coupling health insurance from employment and establishing a Single Payer Health Insurance system would take us out of this phony cafeteria morality play.

  20. David K. says:

    The difference between paying for contraceptives and paying for blood transfusions or mental health services is that contraceptives, in most cases, are NOT medically necessary. They are a convenience for people who want to have sex but not children. An individual should have the right to make that choice, but they should have to pay for it. Simple as that.

  21. Tony W says:

    @David K.: Well you can quibble with my examples, but the core argument remains. Employees should not have to attend church with their bosses to get coverage that aligns with their needs.

  22. David K. says:

    @Tony W: And they don’t have to when it comes to NECESSARY care. Contraceptives are not necessary (in most cases). It’s a big difference.

  23. @Tsar Nicholas: I guess it’s a violation of the Catholic Church’s freedoms to throw cardinals in jail that cover up sexual abuse too?

  24. grumpy realist says:

    @David K.: If you’re female, you are going to find contraceptives to be bloody necessary in a lot of cases. Heard about cramps, smart boy? Heard about irregular menses? Heard about being so much in pain it’s been mistaken for appendicitis?

    Until you have to deal with the problem yourself, shut your bloody gob. You have no idea what you are talking about.

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