Appeals court swipes contraceptive mandate, likely headed to Supreme Court

Liz Goodwin
Senior National Affairs Reporter
Shannon Bream reports from Washington, D.C.

Obamacare’s contraceptive mandate illegally infringes upon the religious freedom of two Catholic grocery store owners in Ohio, the D.C. Circuit Court of Appeals ruled on Friday.

The court’s ruling means Francis and Philip Gilardi do not have to provide contraceptives in their employees’ health care plans pending the resolution of their case. The Gilardis, who own Freshway Foods and Freshway Logistics, are among at least 39 for-profit corporation owners who have sued the federal government over the 2010 health care reform law’s provision that says large employer health plans must include all FDA-approved contraceptives without co-pays.

Judge Janice Rogers Brown wrote for the majority that the mandate put the Gilardis, both devout Catholics, in an impossible position to provide health coverage for their 400 employees. “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,” wrote Brown.

The court said the government had not shown it had a compelling enough interest in forcing employers to provide birth control to justify infringing upon individual owners’ religious objections. “A parade of horribles will descend upon us, the government exclaims, if religious beliefs could serve as a private veto for the contraceptive mandate,” Brown wrote.

Brown argued that religious business owners should be allowed to opt out, as the Obama administration has already carved out exceptions to the mandate for nonprofit religious organizations such as churches and other groups.

The decision is the latest to add to a lower court split on the contraceptive mandate, which means the Supreme Court will almost certainly decide to weigh in and settle it, just a year after it upheld health care reform’s individual mandate.

So far, the 3rd and 6th circuit courts have rejected arguments that businessmen's religious freedom is infringed upon by the birth control mandate. The 10th, 8th and 7th circuit courts have disagreed, forwarding the religious freedom argument.

Many of the cases challenging the contraceptive mandate cite Citizens United, the controversial 2010 Supreme Court decision that found corporations cannot be restricted in how they spend their money for political reasons, because it infringed on their right to free speech. The Gilardis argued that their grocery store corporation also had its own right to free exercise of religion and thus was protected from having to provide contraceptives to employees.

The D.C. judges wouldn’t weigh in on this matter, writing that “the Court has been all but silent” on whether for-profit corporations have a freedom of religion right. The judges instead decided the case in reference to the Gilardis as individuals.