A powerful federal appeals court ruled today that a Catholic family-run business does not have to comply with the Obamacare abortion mandate requiring it to pay for birth control and drugs that may cause abortions.
Francis A. Gilardi, Jr. and Philip M. Gilardi, two brothers who own and control two companies that are involved in the processing, packaging, and transportation of fresh produce, filed suit against the Obama administration on behalf of their business, Freshway Foods, a nearly 25 year old family-owned fresh produce processor and packer, which serves 23 states and has 340 full-time employees.
Both companies are located in Sidney, Ohio, a city in west-central Ohio located about 40 miles north of Dayton. The owners, who are Catholic, contend that the HHS mandate requiring coverage for contraception, sterilization, and abortion-inducing drugs – violates their religious beliefs.
The D.C. Circuit Court of Appeals — the second most influential bench in the land behind the Supreme Court — ruled in favor of the brothers. Requiring companies to cover their employees’ contraception, the court ruled, is unduly burdensome for business owners who oppose birth control and abortion on religious grounds.
“The burden on religious exercise does not occur at the point of contraceptive purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a healthcare plan,” Judge Janice Rogers Brown wrote on behalf of the court.
“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,” Brown wrote.
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.”
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Conservative legal expert Ed Whelan writes at NRO about the case:
1. 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.)
Petitions for certiorari from three federal appellate rulings on the HHS mandate are already before the Supreme Court. It is a very safe bet that the Court will grant review in one or more of the cases. Today’s ruling makes it all the more likely that the Court will ensure that the questions presented extend beyond the RFRA rights of for-profit corporations to include the rights of their individual owners.