Tenth Circuit will hear Hobby Lobby birth control benefit appeal

The nine-judge hearing may not bode well for employee rights or access to birth control, some analysts say

Published April 1, 2013 8:42PM (EDT)

The United States Court of Appeals for the 10th Circuit has granted Hobby Lobby's request for a full court hearing of its challenge to the birth control benefit requirement in the Affordable Care Act. And as Jodi Jacobson at RH Reality Check and Ian Millhiser at the Center for American Progress note, the nine-judge hearing may be an ominous sign.

So-called en banc hearings normally signal that a majority of the justices disagree with the original ruling, which in this case was the December 2012 court decision to reject Hobby Lobby's claim that constitutionally defined religious liberty empowers private employers to restrict their employee's access to birth control. On top of that, most of the appointees to the federal 10th Circuit are conservatives, which doesn't bode well for employee rights or access to birth control, Millhiser contends.

As Millhiser writes:

Last December, a panel of the United States Court of Appeals for the Tenth Circuit denied a request from crafting retail chain Hobby Lobby, which sought to temporarily block Obama Administration rules requiring most employer-provided health plans to cover birth control. Hobby Lobby claimed that the religious liberties protected by the Constitution and federal law extend not only to a religious person’s own conduct, but they also effectively enable an employer to restrict someone else’s access to birth control by denying them benefits guaranteed by the law. The panel’s decision rejected this argument.

Yesterday, however, the full Tenth Circuit agreed to hear the case in an unusual nine-judge hearing— a procedure known as “en banc.” Typically, federal appeals are heard by three-judge panels, and this is especially true when no such panel has fully considered the case on the merits. The court’s previous order concerned a preliminary motion seeking a temporary injunction, not a final consideration of the case.

The court’s decision to hear the case en banc is an ominous sign for women in the workforce. More often than not, courts of appeals agree to hold an en banc hearing only when a majority of the court’s judges disagree with a panel’s previous disposition of a case. Even if that was not the motivation behind this particular decision to en banc this particular case, the fact remains that 6 of the Tenth Circuit’s 10 active judges are Republican-appointees (although one of the Republicans, Judge Jerome Holmes, is recused)...

The full Tenth Circuit’s decision to hear the birth control case does not bode well for women’s access to birth control.

By Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at kmcdonough@salon.com.

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Affordable Care Act Birth Control Hobby Lobby