Appeals court deals blow to contraceptive mandate

The ruling by a three-judge panel sided with Ohio business owners on birth control issue
Associated Press
Nov 1, 2013


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 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.



The Big Dog's back

Repub judges legislating from the bench, again.

There you go again



Not good. This is not a religious organization. It is a business. What's to prevent any business owner to now say that there are a hundred other things that violate their religious beliefs that are normal business practices?


The market and the ability to attract qualified candidates.


Well. let's just do away with all labor laws then.


Fine by me.

There you go again

Well, let them say something violates their religious freedom. if Obama can lie to all of us American, then so can businesses. That's the way our country operates under the current administration.

Yellow Snow

Obamacare mandates free birth control. Then let us reduce funding for clinics that provide abortions. If birth control is even only 85% effective shouldn't abortion funding be reduced by the same amount? If free prevention is now available, why should we fund abortionists? At this point, abortion becomes an elective procedure. Kind of like pay to play. Choose to not use FREE, pay for it out of pocket.

2cents's picture

You drive a car, you buy your own gas!
You get drunk, you buy your own booze!
You get high, you buy your own drugs!
You have sex, you buy your own meds!!


There are thousands of women who are prescribed oral contraceptives for medical reasons, not for birth control. People are ignorant.


So what?

What a lot of bleeding hearts seem to miss is that you can go to the pharmacy at Target or WalMart and get a month's supply of generic low-dose(the best kind) oral contraceptives for $5, or about what you'd pay for a decent beer at a non-dive bar.


There are different types depending on the patient's age, weight, and medical problems. You must be either a man, or a woman who has never used them, otherwise you would know this. Your comment is like saying there is only need for one kind of antidepressant. Ignorance. Educate yourself.
So what? Are your prescriptions denied coverage based on your emplyer's religious beliefs?

2cents's picture

My kid was on a low dose when she started, she dropped them because she did not like the hormones, she is in college and choses not to play around because she wants to have a good shot at a good career. She also saw two high school friends get prego. It is all about choices, your choices,just saying the tax payer should not have to pay for these inexpensive pills, more mandates, more government intrusion. I am mandated to insure all of my employees for maternity, all are over the child bearing age! Figures....


Because one must take a pill to understand anything about it? Apparently, you're incapable of reading reference material and assume the same goes for everyone else. Based on the rate of failures caused by user error, I know more about them than most of those who are using them.

The prices I mentioned are for the generic of the most expensive, current, sought after type.

What you leftists seem to miss is that while you were screaming that Big Brother must pay for everyone's prescriptions, the Big Box stores discovered pharmacies are great loss leaders to get people in the door. The market is working.

looking around

@ 2cents perhaps a little to simplified analogy......


Way too simplified!