DC appellate court rules against HHS contraception mandate, for religious liberty

posted at 10:01 am on November 2, 2013 by Ed Morrissey

The HHS contraception mandate took a body blow in the DC federal appeals court yesterday.  The court ruled that forcing business owners to fund and facilitate contraception and sterilization services against the tenets of their faith encroaches on their free exercise of religious belief, and that the government’s argument that protecting womens’ health trumped that right was absurd:

The mandate “trammels the right of free exercise,” Judge Janice Rogers Brown wrote for a divided three-judge panel of the Court of Appeals for the District of Columbia Circuit.

The ruling was largely in line with most others around the country so far. Of nearly 40 challenges, only a handful of courts have upheld the government’s requirement that employer health plans provide free birth control, emergency contraception and sterilization.

Francis A. Gilardi Jr. and Philip M. Gilardi, brothers from Sidney, Ohio, should not have to provide contraception coverage to employees of the companies they own if it goes against their Catholic faith, the court ruled. However, those companies themselves, Freshway Foods and Freshway Logistics, do not have the right to challenge the mandate on religious grounds, the court said.

That’s true, but backwards. What Judge Janice Rogers Brown wrote in her decision was that corporations themselves, whether for-profit or non-profit, do not have First Amendment standing for religious exercise.  However, those who own or run them do, and even though the Gilardis’ businesses are corporations, the net effect of the HHS mandate is to penalize the Gilardis individually for living their faith.

Ed Whelan explains it better:

The primary opinion, by Judge Janice Rogers Brown, rules, first, that the closely-held companies that the Gilardis run do not have any rights under RFRA. Judge Brown determines that “secular corporations” do not have free-exercise rights. And although the line between secular and religious corporations might not be easy to draw (and does not turn on the for-profit/nonprofit distinction), the plaintiff companies conceded that they are religious corporations. (Slip op. at 7-15.)

But, Brown rules, the Gilardis themselves have been injured by the HHS mandate in a way that is separate and distinct from the injury to their companies. (Slip op. at 15-17.) The HHS mandate burdens their exercise of religion by pressuring them to approve and endorse the inclusion of objectionable coverage in their companies’ health plans. “They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong.” (Slip op. at 20; see generally pp. 17-23.) The government’s supposedly compelling interest is nebulous (slip op. at 23-28), and even if it were compelling, the HHS mandate is not the least restrictive means of furthering that interest (slip op. at 28-32.)

Steven Ertelt notes that the majority had considerable skepticism over the Obama administration’s argument that this mandate was necessary to keep women healthy:

The Obama administration said that the requirement is necessary to protect women’s health and abortion rights. The judges were unconvinced that forcing companies to violate their religious rights was appropriate.

Brown wrote that “it is clear the government has failed to demonstrate how such a right — whether described as noninterference, privacy, or autonomy — can extend to the compelled subsidization of a woman’s procreative practices.”

“The provision of these services — even without the contraceptive mandate — by and large fulfills the statutory command for insurers to provide gender-specific preventive care,” she wrote. “At the very least, the statutory scheme will not go to pieces.”

It’s actually paternalism taken to an absurd level.  People earn wages to pay for their own elective choices.  Why should employers have to provide free contraception when they’re paying people to work?  The policy assumes that women who don’t get contraception for free won’t buy it for themselves, even when they’re earning a paycheck. Employers who want to provide that benefit should feel free to do so, but those who don’t shouldn’t be forced to do so, especially when it interferes with their religious beliefs.

The Supreme Court will eventually weigh in on this, and the White House had better get prepared for bad news in this regard. As the New York Times notes, this mandate is mostly getting laughed out of court so far, and I’d bet that it won’t do well at the next level either.


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Good.

22044 on November 2, 2013 at 10:05 AM

Most excellent.

Panther on November 2, 2013 at 10:06 AM

OMGoodness. Common sense?

Murphy9 on November 2, 2013 at 10:07 AM

8 years of fantasy will take a generation or two to correct.

BobMbx on November 2, 2013 at 10:10 AM

Francis A. Gilardi Jr. and Philip M. Gilardi, brothers from Sidney, Ohio, should not have to provide contraception coverage to employees of the companies they own if it goes against their Catholic faith, the court ruled. However, those companies themselves, Freshway Foods and Freshway Logistics, do not have the right to challenge the mandate on religious grounds, the court said.

Does this mean that liberals will shut up about Citizens United? /rhetorical

nobar on November 2, 2013 at 10:12 AM

Well we all thought Obamacare would be thrown out, and see what happened. Maybe Justice Roberts has more stuff in the closet that can be used when needed.

celtic warrior on November 2, 2013 at 10:14 AM

This is great news.

workingclass artist on November 2, 2013 at 10:16 AM

“Keep your government hands off my body” is SUPPOSED to include using government force to overrule religious beliefs, if you KKK righties would only take the time to think before spouting off.

Read a book sometime, wing dings.

Bishop on November 2, 2013 at 10:17 AM

The Supreme Court will eventually weigh in on this, and the White House had better get prepared for bad news in this regard. As the New York Times notes, this mandate is mostly getting laughed out of court so far, and I’d bet that it won’t do well at the next level either.

As if.

NSA, Chief Justice John Roberts, Obama = what ever Obama Wants, Obama Gets.
The penalty that was argued over and over by those that wrote and passed the bill as a penalty and absolutely not a tax in any way shape or form, signed into law by a man who also said that under no guise was the penalty a tax, became a tax.

astonerii on November 2, 2013 at 10:19 AM

Sandra Fluke is devastated.

AZCoyote on November 2, 2013 at 10:19 AM

There should not be any doubt why Obama wants to pack this court with Liberals. He knows a lot of his legislative agenda is going to be litigated. The Supreme Court is close and John Roberts has already proved he can be had, so the important thing is to get it through the D.C. Court with a positive assessment for the Supreme Court.

I hope the Republicans do something there averse to, and that’s filibuster these judicial appointments. The Democrats have proven they’d do it, and by not doing it, you’re going to have this deceitful administration able to quote the power of law, like they have with the ACA. Just think, had John Roberts not switched, the liar and his Democrat supporters, would have had to revamp this law to get Republican votes. John Roberts is the most responsible for this travesty of a law remaining on the books. Obama wants to set it up so more judges deem his laws constitutional.

bflat879 on November 2, 2013 at 10:20 AM

Sandra Fluke is devastated.

AZCoyote on November 2, 2013 at 10:19 AM

Well…a certain part of her is.

Bishop on November 2, 2013 at 10:21 AM

astonerii on November 2, 2013 at 10:19 AM

And not just any old tax, but a magic tax at that. It was a tax when Roberts needed it to be a tax, and not a tax when he needed it not to be a tax.

AZCoyote on November 2, 2013 at 10:21 AM

Well…a certain part of her is.

Bishop on November 2, 2013 at 10:21 AM

Yes, but it’s still early here and I haven’t had my breakfast yet, so I don’t want to think about that!

AZCoyote on November 2, 2013 at 10:22 AM

Oh no, Democrats hardest hit,er sumpin likes dat!!

canopfor on November 2, 2013 at 10:25 AM

Yes, but it’s still early here and I haven’t had my breakfast yet, so I don’t want to think about that!

AZCoyote on November 2, 2013 at 10:22 AM

Let me help: Two day old lasagna that has sat out on the counter.

Ok, go eat your breakfast, you’re welcome.

Bishop on November 2, 2013 at 10:27 AM

Mandating something that costs females as little as $9 month was ri-donk-uloous in the first place. As well, abstinence is free.

hillsoftx on November 2, 2013 at 10:28 AM

Ha! Chief Justice Roberts — or, as I like to call him, David Souter –will give this the thumbs up faster than you can say “the individual mandate is a tax.”

Rational Thought on November 2, 2013 at 10:29 AM

NO SH*T:

N. Catholic Register ‏@NCRegister

New article: Lawsuit: HHS Mandate a ‘Conscious Political Strategy’ to Divide the Church http://dlvr.it/4CN41T

https://twitter.com/NCRegister/status/394043618899398656

canopfor on November 2, 2013 at 10:32 AM

Activist Judges!

Del Dolemonte on November 2, 2013 at 10:34 AM

And as revenge…

Akzed on November 2, 2013 at 10:37 AM

Results for #HHSmandate
***********************

https://twitter.com/search?q=%23HHSmandate&src=hash

canopfor on November 2, 2013 at 10:40 AM

This administration better get used to being laughed at.

GarandFan on November 2, 2013 at 10:41 AM

Trammels the right of free exercise.”

Certainly don’t see that word used nearly enough. ; )

Bmore on November 2, 2013 at 10:41 AM

Finally, some common sense. I don’t care what anybody says, free birth control is not a “right”.

RebeccaH on November 2, 2013 at 10:43 AM

WOOOO!!! HOOOOO!!!

Time for a celebratory dance in my Code Pink-issued vagina costume.

blammm on November 2, 2013 at 10:43 AM

Does this mean that liberals will shut up about Citizens United? /rhetorical

nobar on November 2, 2013 at 10:12 AM

Of course not – they have launched lawfare against several groups that sided with Wisconsin governor Scott Walker.

Steve Eggleston on November 2, 2013 at 10:44 AM

Azked what else do you expect from the mist petty little man and his fellow Orcs? Spitehouse indeed.

neyney on November 2, 2013 at 10:45 AM

Most not mist! I hate this tiny iphone keyboard!

neyney on November 2, 2013 at 10:46 AM

MeanWhile, heres a Interlude sumpin between comments:

LIVE STREAMING:
***************

Red Sox Parade Live Stream: Watch Boston’s Title Celebration Live Online

http://bleacherreport.com/articles/1834547-red-sox-parade-live-stream-watch-bostons-title-celebration-live-online?utm_source=dlvr.it&utm_medium=twitter

canopfor on November 2, 2013 at 10:49 AM

Steve Eggleston on November 2, 2013 at 10:44 AM

If you have any interest in who guessed the gun correctly. ; )

Bmore on November 2, 2013 at 10:50 AM

birth control is a tax. /roberts…

dmacleo on November 2, 2013 at 10:56 AM

the White House had better get prepared for bad news

Really? You have more faith in John Roberts’ reasonableness than I do. Thanks to him, we will have a generation more of confusion and litigation and disruption of the greatest health care system in the world.

PattyJ on November 2, 2013 at 11:08 AM

Sandra Fluke is devastated.

AZCoyote on November 2, 2013 at 10:19 AM

She should ask her suitors for a donation each time they engage.
Maybe put a mason jar beside her bed or something.

justltl on November 2, 2013 at 11:09 AM

Top Breaking News ‏@h0tbreakingnews 19m

Sexy supporters for Obamacare http://dlvr.it/4FZd9Q #BreakingNews
==================================================================

Sex workers sign up for Obamacare
November 2, 2013
****************

Sex workers in California threw an Obamacare enrollment party called the

“Healthy Ho’s Party.”

canopfor on November 2, 2013 at 11:16 AM

Catch-22, 1984, Orwellian, Kafkaesque – All these literary descriptions apply to Obamacare and the government that is pushing it.

This court ruling is good, but it’s no deterrent at all to Obama’s bureaucracy. Obamacare will stipulate that insurance companies can ONLY offer plans that comply with Obamacare requirements. Some companies may not have to the fines, but they also will not be able to buy a policy that does not have the required coverage they object to.

Kill this monstrosity before it eats the entire U.S. Constitution. Vote like your freedom depends on it – IT DOES!

pilsener on November 2, 2013 at 11:17 AM

DC appellate court rules against HHS contraception mandate, for religious liberty

….JugEars and Eric Hold’em…are not going to be happy!

KOOLAID2 on November 2, 2013 at 11:18 AM

pilsener on November 2, 2013 at 11:17 AM

As long as there are other options, and there are, this will only keep more healthy people away from Obamacare.

txhsmom on November 2, 2013 at 11:27 AM

Another Obama promise: “If you like yoh religious liberty, you can keep yoh religious liberty.”

BuckeyeSam on November 2, 2013 at 11:28 AM

canopfor on November 2, 2013 at 11:16 AM

Speaking strictly from a health-insurance perspective, leaving all the snarkiness aside, is that a risk pool any healthy individual wants to be a part of?

BuckeyeSam on November 2, 2013 at 11:30 AM

Another reason for Obama to suspend the constitution and rule by executive order.

kcewa on November 2, 2013 at 11:33 AM

She should ask her suitors for a donation each time they engage.
Maybe put a mason jar beside her bed or something.

justltl on November 2, 2013 at 11:09 AM

Exactly. If Sandra wants or needs help underwriting this cost, she should get Justin, the understanding progressive metrosexual, who will respect her in the morning, to buck up a pro rata amount. Of course, it Justin sees that the jar is pretty full and looks at Sandra, he may want to rethink the whole bargain entirely.

BuckeyeSam on November 2, 2013 at 11:34 AM

canopfor on November 2, 2013 at 11:16 AM

Speaking strictly from a health-insurance perspective, leaving all the snarkiness aside, is that a risk pool any healthy individual wants to be a part of?

BuckeyeSam on November 2, 2013 at 11:30 AM

BuckeyeSam:

Hell no, my jaw dropped when I had seen that link, and a stark contrast between Moral Right and Immoral Left!–:)

canopfor on November 2, 2013 at 11:37 AM

Certainly don’t see that word used nearly enough. ; )

Bmore on November 2, 2013 at 10:41 AM

Heck, that goes to show how much I know. I wondered what a circle scriber had to do with this case.

cozmo on November 2, 2013 at 11:49 AM

The mandate “trammels the right of free exercise,” Judge Janice Rogers Brown wrote for a divided three-judge panel of the Court of Appeals for the District of Columbia Circuit.

I blame Booosh for not nominating her to SCOTUS, maybe she could have slapped some sense into Roberts before he got creative with the tax maneuver.

AH_C on November 2, 2013 at 12:10 PM

canopfor on November 2, 2013 at 10:32 AM

Separating the wheat from the chaff is not necessarily a bad thing. And I say that as one who spent most of my life on the wrong side of Church teachings. Not any more. If I belong to the Church, I don’t get to decide which of its teachings to follow or ignore.

It isn’t supposed to be easy.

Kraken on November 2, 2013 at 12:13 PM

the Obama administration’s argument that this mandate was necessary to keep women healthy

The “women’s health” argument is belied by the fact that leftists fought the Texas law requiring abortionists to have admitting privileges at a nearby hospital.

It’s never really been about “women’s health” for them.

ITguy on November 2, 2013 at 12:17 PM

People earn wages to pay for their own elective choices.

What more is there to say?

DaveDief on November 2, 2013 at 12:21 PM

I’m not a big fan of this decision. Doesn’t go far enough. Corporations should have free exercise rights just like they were found to have free speech rights in Citizens United.

Mark1971 on November 2, 2013 at 12:33 PM

The “women’s health” argument is belied by the fact that leftists fought the Texas law requiring abortionists to have admitting privileges at a nearby hospital.

It’s never really been about “women’s health” for them.

ITguy on November 2, 2013 at 12:17 PM

Bingo. It is about divide and conquer using a wedge issue. ‘A house divided against itself cannot stand’ is both a warning and a strategy depending whether you believe in individual freedom or government-approved “freedom”.

DrDeano on November 2, 2013 at 12:51 PM

This virtually assures that the validity Supreme Court will grant cert to decide this issue. A few notes about the ruling:

1. This Court did not hold that the contraception mandate violates the Constitution. No Court has held that (nor could one). Instead, every Court that has ruled against the mandate has done so only as applied against particular persons or corporations, under a law Congress passed in in 1993 (which interestingly, was itself held unconstitutional in part in 1997).

2. Ed’s comment that “this mandate is mostly getting laughed out of court so far” is ridiculous. The Third and Sixth Circuits have rule for the mandate; the D.C. and 10th Circuits against it. And again, the Courts that have ruled against it have only held that it is invalid in a select few applications.

3. The challengers to the mandate lucked out with this panel. Judge Randolph is very conservative, and Judge Brown is a perhaps the most conservative rightist federal appellate court judge in the country. But that conservatism will hurt opponents of the mandate when this is appealed to the Supreme Court. Both judges are frequently reversed. And Judge Brown certainly did not do her credibility any favors with the hysterical tone and language of her opinion.

righty45 on November 2, 2013 at 2:09 PM

the Obama administration’s argument that this mandate was necessary to keep women healthy

How about the women wait a few months, and then they’ll be “healthy” again? And the “fetus” they were carrying would be healthy too in a home where parents love him.

PattyJ on November 2, 2013 at 2:19 PM

FYI: OBOZO is trying to stack the U.S. Court of Appeals for the District of Columbia Circuit with several additional d-cRAT socialist extremist excuses for “judges” to stop sane and rational rulings like this one.

TeaPartyNation on November 2, 2013 at 2:57 PM

Are there any lawsuits being brought by individuals being required to buy abortion coverage through their employer?

Gotcha on November 2, 2013 at 4:09 PM

the net effect of the HHS mandate is to penalize the Gilardis individually for living their faith.

Hogwash. The law doesn’t say the mandate only applies to Catholics, it applies to everyone, which means you are penalized no matter what, if any, faith you adhere to. Even Godless atheists are penalized.

I’m against this law as much as anyone, but the idea that being a Catholic(or any other religion) means you have more rights and more freedom than a non-religious person/entity is absurd. That’s not the intent of the First Amendment.

xblade on November 2, 2013 at 4:21 PM