A (procedurally) controversial contraception decision

Annex Med., Inc. v. Burwell, No. 13-1118 (8th Cir. Oct. 6, 2014).

The Affordable Care Act’s contraceptive mandate was appealed to the Eighth Circuit last year, before the Supreme Court had issued its decision in Hobby Lobby. Now the Eighth Circuit has issued an opinion, but, as Buzzfeed might say, the result may surprise you. 

Stuart Lind, the owner of Annex Medical, says that contraceptives go against his beliefs. He cancelled his employees’ Blue Cross coverage because Blue Cross refused to eliminate coverage for contraceptives. No other insurer would offer him contraceptive-free coverage either. 

So, it’s unclear whether his problem is being caused by the government or not. Even if the contraceptive mandate is enjoined—and here the Eighth Circuit had preliminarily enjoined the mandate, pending appeal—Lind might still be unable to purchase contraceptive-free coverage. For this reason, says the Eighth Circuit, it’s far from clear whether Lind and his company have standing to pursue the lawsuit. The court therefore vacates the district court’s denial of a preliminary injunction and remands for “additional analysis,” where the district court can employ its “superior fact-finding abilities” to determine whether the plaintiffs have standing. 

Judge Colloton concurs in the judgment. He says the plaintiffs do have standing, and he would reverse on the merits in light of Hobby Lobby. Part of his objection to the majority seems to be that the court is questioning the plaintiffs’ standing on its own—a strange position to take, since standing goes to the nonwaivable question of subject matter jurisdiction. But he also argues that the plaintiffs have suffered injury and can receive meaningful redress from the courts—and thus possess standing—because, after Hobby Lobby, a contraceptive-free insurance market “is likely to develop.” And he accuses the majority of engaging in “speculation.” Pot, meet kettle.