Appeals Court Deals Blow to Contraceptive Mandate

(AP) Appeals court deals blow to contraceptive mandate
By FREDERIC J. FROMMER
Associated Press
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?


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.


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.


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.


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

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