Christopher Capozziello for The New York Times

With a ruling on Friday by the Seventh Circuit, a total of five federal circuit courts have weighed in on religious challenges to the health care law’s contraception mandate.

It now seems virtually certain that the Supreme Court, which is due to consider pending petitions for review on November 26th, will agree to decide the issue this term.

Among the federal circuit courts that have spoken so far, three – the Seventh, Tenth and D.C. Circuits – have ratified the dangerous view that secular, profit-making private employers can claim a religious exemption from the Affordable Care Act, and deny female employees an important health benefit. Two – the Third and Sixth – sensibly rejected the religious liberty claims.



The 2-1 Seventh Circuit ruling, written by Judge Diane Sykes and joined by Judge Joel Flaum was ultra-aggressive (and ultra-wrong) in finding that the contraception mandate violated the religious exercise rights of the law’s challengers: Closely held construction and vehicle safety companies, and their Roman Catholic owners.

In a 91-page dissent, Judge Ilana Rovner shredded the majority’s departure from precedent, historic facts and common sense, providing a model of what a sensible Supreme Court decision would look like.

Summing up where her Seventh Circuit colleagues went wrong, Judge Rovner had this to say about their decision:

“It bestows a highly personal right to religious exercise on two secular, for-profit corporations that have no facility of thought, conscience, or belief. It deems the religious rights of the plaintiffs burdened by the contraceptive mandate without consideration of the indirect and minimal intrusion on the exercise of religion. And it disregards the extent to which the exemption from the mandate burdens the rights of the plaintiffs’ employees. Finally, it establishes a precedent which invites free-exercise challenges to a host of federal laws by secular corporations which, in reality, have no religious beliefs of their own and cannot exercise religion.”

Exactly right.

Soon it will be the justices’ turn.