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.