Rovner Opposes Injunction Barring Enforcement of Contraception Mandate

In a split opinion on December 28, 2012, the 7th Circuit granted Cyril and Jane Korte and their construction company an injunction pendng appeal enjoining the government from enforcing the provision of the Patient Protection and Affordable Care Act (P.L. 111-148) that requires the company to purchase an employee health insurance plan that includes no cost-sharing coverage for contraception procedures (42 U.S.C §300gg-13(a)(4)). Judges Joel M. Flaum and Diane S. Sykes concluded that the Kortes established a reasonable likelihood of success on the merits of their Religious Freedom Restoration Act (RFRA) claim and irreparable harm and that the balance of harms tips in theirs favor. Judge Ilana Rovner dissented, however, stating that she would deny the Kortes emergency request for temporary injunctive relief because she did not believe that the Kortes demonstrated either a reasonable likelihood of success on the merits of their appeal or irreparable harm in the absence of an injunction pending the resolution of the appeal.

Rovner’s conclusion was that the Kortes did not show that complying with the contraceptive mandate substantially burdens the free exercise of their religious rights in violation of the RFRA. Although the Kortes contend that complying with the PPACA contraception mandate violates their religious liberties, Rovner explains how they are multiple steps from the contraceptive services to which they object. First, the corporation rather than the Kortes will pay for the insurance coverage. Second, the company will not be paying for the contraceptive services directly, it will be paying for insurance that covers a wide range of health care services. Finally, if the employee avails herself of contraceptive services, the insurer will be funding the services, not the Kortes.

As Rovner sees it, “What the Kortes wish to do is preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object, despite that neither the company nor its owners are involved with the decision to use particular services, nor do they write the checks to pay the providers for those services.”  According to Rovner, if an employer has this right, it is not clear what limits there might be on the ability to limit the insurance coverage provided to employees when medical services are inconsistent with the employer’s or owner’s individual religious beliefs.

Rovner also expressed uncertainty as to whether the Kortes will be irreparably harmed in the absence of a temporary injunction that would relieve them of the obligation to comply with the mandate to purchase insurance covering contraceptive services. She noted that the Kortes have been paying for an insurance plan that includes contraceptive services for at least one year. In addition, she stated that the regulations imposing the contraceptive mandate were issued in August of 2011 but the Kortes waited for more than a year to file their suit for a preliminary injunction relieving them of the duty to comply with the statute and regulations. In her opinion, the Kortes belated discovery that the company  voluntarily has been providing its employees with coverage for the contraceptive services they claim are contrary to their religious beliefs coupled with their tardy decision to file suit seeking injunctive relief suggests that they will not be irreparably harmed if they are denied a preliminary injunction and continue to pay for the same coverage in compliance with PPACA while their appeal is being resolved.

See Korte v Sebelius, No. 12-3841, (7th Cir. 2012).