Judges call majority ‘clearly and gravely wrong’ in Tenth Circuit contraception mandate case

Although the Little Sisters of the Poor Home for the Aged, Denver, Colorado (Little Sisters) did not seek rehearing of their case in front of the Tenth Circuit, the circuit court of appeals entered an order denying a rehearing. The order was based on a poll, which was conducted upon the court’s own motion, among the active judges of the court. A majority of the judges voted to deny the rehearing; five judges voted to grant an en banc rehearing and joined in a dissent, which was issued with the order (Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Burwell, September 3, 2015, per curiam).

Mandate and accommodation

Under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), employer-sponsored plans offered by employers with 50 employees or more must meet certain coverage requirements, including that the plans must cover all FDA-approved contraceptive methods without copays or deductibles. While some entities, such as religious employees, are exempt from those employers, others religious entities that do not qualify for that exemption may participate in an accommodation. The accommodation allows the employer to relieve themselves of the ACA mandate by certifying that their organization is opposed to providing coverage for contraception services. In turn, a third-party administrator provides for the coverage of the objectionable contraceptives.

Procedural history

Little Sisters first challenged the accommodation before a circuit court, which denied its request for a preliminary injunction to avoid the accommodation. The Tenth Circuit then upheld that denial holding that the accommodation did not violate the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb) or constitute a substantial burden on the religious exercise of Little Sisters or other similar organizations that joined Little Sisters in their challenge (see Prayers for injunctions go unanswered in appellate review of contraceptive accommodation, Health Reform WK-Edge, July 15, 2015). Following the Tenth Circuit’s decision, Little Sisters filed a petition with the Supreme Court and the Tenth Circuit entered an order stating that organization did not have to comply with the accommodation until the Supreme Court rules on its case (see Little Sisters granted relief from the heat, Health Reform WK-Edge, August 26, 2015).


While the Tenth Circuit’s most recent order summarily states that the court conducted its own poll to decide whether a rehearing en banc was appropriate and that a majority of active judges voted to deny a rehearing, five judges voted to grant it. Judge Hartz wrote a dissent explaining the reasons for that denial. The dissent stated “the opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty.” Continuing, Judge Hartz argued that the filling out of the forms that is necessary to participate in the accommodation constitutes participation in the very behavior that the organization finds sinful and asked “how can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?” Four other judges joined in this dissent.