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8th Cir. Handles Another Post-Hobby Lobby Contraceptive Case

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By Mark Wilson, Esq. on September 11, 2014 11:42 AM

Here's one way to solve the problems with Hobby Lobby: All the health insurance companies in the country can agree that they won't sell any insurance policy that doesn't contain contraceptive coverage. That's sort of what happened in Annex Medical v. Burwell.

Annex is a small corporation with 16 full-time employees. Its controlling shareholder, Stuart Lind, has a religious objection to providing contraception to female employees as part of a health insurance plan. He was shocked -- shocked! -- to find out that the Blue Cross plan he selected for his employees contained contraceptive coverage. He called Blue Cross to see if they could exclude that coverage, but Blue Cross refused. In fact, no insurer Lind contacted would exclude contraceptive coverage.

Standing Is a Problem

Here's the kicker: Annex has fewer than 50 employees, so it wouldn't be required to provide insurance in the first place. Any insurance it does provide doesn't even have to comport with the Affordable Care Act requirements. Really, Lind's problem is that no private insurance company will sell him a policy that doesn't have contraceptive coverage. Even though the court's temporary injunction prevents the government from enforcing the health care mandate against Lind, Annex, and insurance companies, what we have here is a case of insurance companies voluntarily deciding not to unbundle contraceptive coverage.

This presented a problem for the Eighth Circuit: Even though, thanks to Hobby Lobby, the government can't burden Lind's First Amendment rights, nothing stops a private company from doing so: "Whether for political, moral, religious, administrative, or purely profit-driven reasons, health insurance issuers are free under RFRA to decline Annex's business." Consequently, it remains to be seen whether the court is actually capable of redressing the problem.

The Eighth Circuit decided to send this one back to the district court to clear up a "sparse record" and determine whether the government is really behind Lind's inability to get contraceptive-free insurance, and whether a permanent injunction will solve the problem.

Concurring Opinion: There's Standing No Matter What

Judge Steven Colloton agreed that preliminary injunction should be vacated, "but not for the reasons given by the panel majority." Colloton called the standing problem "illusory" because everyone at the district court level agreed that there was standing. Though Colloton insists in his concurrence that the problem is with the government (insurance companies are "forbidden" from offering a plan that Lind wants), he never addresses the fact that, as an employer with fewer than 50 employees, he would never have been subject to the ACA requirements anyway.

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