ERISA and Global Benefits

Seventh Circuit Ruling Expands Circuit Split On Contraception Mandate

November 19, 2013

The Global Compensation, Benefits & ERISA Practice Group

The Seventh Circuit has issued the latest key decision in the battle over the Affordable Care Act’s contraception mandate, which requires employer-provided group health plans to cover birth control.  A split Seventh Circuit panel reversed the district court’s decision and ordered entry of a preliminary injunction barring enforcement of the mandate.  In the case, Korte v. Sebelius, No. 12-3841, two secular, closely-held corporations and their Catholic family owners objected to the mandate on the basis of religion and sought relief under the constitution and the Religious Freedom Restoration Act (“RFRA”).

The Seventh Circuit found that the plaintiffs’ RFRA claims were likely to succeed and that the balancing of harms favored protecting their religious liberty rights.  The decision is notable in that it recognizes religious freedom rights for both the owners and their corporations, and because it is the first to grant an injunction to the mandate.
The Seventh Circuit joins four other circuit courts in ruling on the mandate,  with the Third and Sixth upholding the mandate, the Tenth finding, among other things, that the plaintiff corporations were likely to succeed on their RFRA claims and remanding for further consideration of preliminary injunction factors that the district court had not reached, and the D.C. Circuit holding that the mandate substantially burdened the free exercise rights of the plaintiff owners and likewise remanding for further consideration.  Petitions for Supreme Court review currently are pending with respect to all four of those circuit court decisions, teeing up the conflict for potential Supreme Court review as early as this term.