Appeals court deals blow to ObamaCare contraceptive mandate

WASHINGTON – A divided appeals court panel sided Friday with Ohio business owners who challenged the birth control mandate under the new federal health care law.

The business owners are two brothers, Francis and Philip M. Gilardi, who own Freshway Foods and Freshway Logistics of Sidney, Ohio., and challenged the mandate on religious grounds. They say the mandate to provide contraceptive coverage would force them to violate their Roman Catholic beliefs and moral values by providing contraceptives such as the morning-after pill for their employees. The law already exempts houses of worship from the requirement.

The ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit is one of several on the birth control issue, which likely will be resolved by the Supreme Court. There are at least three other rulings by federal appeals courts on the mandate: One sided with Oklahoma businesses; and two sided with the Obama administration in challenges brought by Pennsylvania and Michigan companies.

Writing for the majority, Judge Janice Rogers Brown wrote that the mandate "trammels the right of free exercise--a right that lies at the core of our constitutional liberties--as protected by the Religious Freedom Restoration Act."

Brown, an appointee of President George W. Bush, said that the mandate presented the Gilardis with a "Hobson's choice: 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."

Friday's ruling reversed a lower court ruling that had denied the Gilardis' request for a preliminary injunction to block the Department of Health and Human Services from enforcing the mandate against them as business owners. The appeals court ruled that the lower court erred when it concluded the Gilardis were unlikely to succeed on the merits, and sent the case back to the lower court to consider other factors for an injunction.

But Brown upheld the lower court's dismissal of an injunction for the brothers' companies, writing, "we have no basis for concluding a secular organization can exercise religion."

In an opinion dissenting from the court's main holding in the case, Judge Harry T. Edwards wrote that legislative restrictions may trump religious exercise. He asked what, if the Gilardis' companies were exempted from covering contraception, would stop another company from seeking an exemption from a requirement to cover vaccines?

"The mandate does not require the Gilardis to encourage Freshway's employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages," wrote Edwards, who was appointed by President Jimmy Carter. He added that the Gilardis remain free to publicly express their disapproval of contraceptives.

Coming from the other direction, Judge A. Raymond Randolph joined Brown's main conclusion about the Gilardis but dissented from her conclusions about Freshway companies' exercise of religion.

"Why limit the free-exercise right to religious organizations when many business corporations adhere to religious dogma?" asked Randolph, an appointee of President George H.W. Bush. "If non-religious organizations do not have free-exercise rights, why do non-religious natural persons (atheists, for example) possess them?"

The Gilardis' lawyer, Francis Manion, senior counsel for the American Center for Law and Justice, an anti-abortion legal group that focuses on constitutional law, said he was pleased that the court accepted the "bulk" of his arguments, but will appeal the part of the ruling on the free exercise religious rights of corporations.

"It's a big victory, but not total," he said in a telephone interview.

In a statement, the Rev. Barry W. Lynn, executive director of Americans United, a church-state watchdog group, said the Friday's ruling turns "the concept of religious freedom on its head.

"Religious liberty means the right to make decisions for yourself, not other people," Lynn said. "Freedom of religion should never be a blank check to meddle in the personal medical decisions of others."

The Department of Health and Human Services said it was unable to comment on pending litigation.