Obamacare is headed back to the Supreme Court, this time as the justices review the constitutionality of a Health and Human Services regulation mandating that companies provide free contraception to their employees.
The mandate provoked an array of lawsuits from plaintiffs claiming the the regulation violated their religious freedom. Some courts agreed with the Justice Department that the mandate was constitutional, but the government suffered two significant defeats this year.
The Supreme Court agreed Tuesday to hear two cases, one an appeal from the Justice Department of the 10th Circuit Court of Appeals decision in June saying that the mandate violated the religious freedom of Hobby Lobby Inc., and the other a case from the Third Circuit, which ruled against another for-profit company, Conestoga Wood Specialties Corp.
A D.C. Circuit Court of Appeals panel ruled against the mandate in a separate case in November, holding that Francis and Philip Gilardi, who own Freshway Foods and Freshway Logistics, ought not be required to provide contraception to their employees. The panel also noted that the 2010 campaign finance decision, Citizens United, might prove destructive to the HHS mandate.
"There is an appeal to this simple reasoning; after all, the free-exercise and free-speech rights are enshrined in the same constitutional provision, separated only by a semicolon," Judge Janice Rogers Brown wrote in the opinion.
"Perhaps [the Gilardi's] constitutional arithmetic — Citizens United plus the Free Exercise Clause equals a corporate free exercise right — will ultimately prevail," Brown continued, without passing judgment on that question.
More here on how Citizens United might play into the HHS mandate case.