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Whither Obamacare’s Contraception Mandate Now?

The mandate runs afoul of another appeals court.

By 11.4.13

Last Friday, capping off a week filled with disturbing revelations of bureaucratic incompetence and presidential mendacity concerning Obamacare, the D.C. Circuit Court of Appeals struck down the “reform” law’s notorious contraception mandate. On behalf of the majority, Judge Janice Rogers Brown wrote that the mandate would force the plaintiffs in Gilardi v. HHS to choose between bankruptcy and violating their religious beliefs: “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.”

This, the court ruled, violates the constitutional rights of plaintiffs Francis and Philip Gilardi. The Gilardi brothers own Freshway Foods as well as Freshway logistics and provide health insurance for their 400 employees through a third-party administrator. They also oppose contraception, sterilization, and abortion. Thus, Freshway’s employee health plan excludes coverage of products and services related to those practices. Believing that the contraception mandate violates their rights under the Religious Freedom Restoration Act (RFRA) and the Free Exercise clause of the First Amendment, the Gilardis filed a lawsuit against the government last January.

Gilardi v. HHS eventually wound its way through our labyrinthine judicial system to the D.C. appeals court, which not only confirmed that an American retains his religious liberty even if he runs a for-profit business, but also exposed the essential absurdity of the government’s legal argument. As Judge Brown wrote, “A parade of horribles will descend upon us, the government exclaims, if religious beliefs could serve as a private veto for the contraceptive mandate. Hyperbole aside, we note it was Congress, and not the courts, that allowed for an individual’s religious conscience to prevail over substantially burdensome federal regulation.”

Predictably, our friends on the left have responded to this important ruling by ignoring its substance and attacking Judge Brown. In Slate, for example, the decision was represented as the latest body blow “against reproductive rights” delivered by extremist judges appointed by President Obama’s predecessor. “Another extremely conservative woman chosen for the bench by Bush, Janice Rogers Brown … handed down a dramatic decision holding that the provision in the Affordable Care Act that requires companies to provide health care coverage that includes contraception ‘trammels’ the religious freedom of an Ohio-based food service company.”

Brown said nothing of the kind, of course. In fact, she and her colleagues took the opposite position: “No… corpus juris exists to suggest a free-exercise right for secular corporations.” They did, however, rule that the owners of companies can be injured by the mandate in ways unrelated to injuries inflicted on their businesses. “The contraceptive mandate demands that owners… meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer provided plans, over whatever objections they may have.” Thus, owners are given a Hobson's choice (i.e. a free choice in which only one option is offered).

Oddly, the ruling’s critics seem to have developed amnesia. Two years ago, they loudly celebrated the wisdom of the D.C. Circuit Court of Appeals for upholding Obamacare’s constitutionality. Now they insinuate that it’s a hive of conservative extremists. But, as Judge Brown explains, Gilardi v. HHS involves a completely different issue: “This time … we are not confronted with a question of constitutional authority. Instead, we must determine whether the contraceptive mandate imposed by the Act 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.”

Obviously, Obamacare’s contraception mandate does trammel the free exercise rights of business owners with deeply held religious views. Like the plaintiffs in Hobby Lobby v. Sebelius, who also object on moral grounds to sterilization and abortion, the Gilardi brothers merely want to run their business in a way that conforms to their religious convictions. They don’t want to restrict anyone’s “reproductive rights.” They don’t even want to prevent their employees from using birth control. They do, however, refuse to abide by an arbitrary government decree that requires them to finance contraception, sterilization, and abortion.

So, like the Tenth Circuit Court of Appeals in the Hobby Lobby case, the D.C. appeals court concluded that the contraception mandate exceeds the legitimate power of the federal government as stipulated in the First Amendment and reaffirmed by RFRA. In the end, the Supreme Court will make the call. The Obama administration, in the wake of its defeat in the Tenth Circuit, has already petitioned the Court to hear Hobby Lobby v. Sebelius and Friday’s ruling in the D.C circuit will inevitably put more pressure on the Court to deal with the contraception mandate one way or another. Recalling the Court’s last Obamacare ruling, that provides little comfort

Still, there is reason to hope the Court will do the right thing this time. The contraception mandate is not a “linchpin” of Obamacare. As Judge Brown put it Friday, “The comprehensive sweep of the Affordable Care Act will remain intact with or without the mandate.” As a practical matter, then, it would be easier for the justices to declare invalid than was the individual mandate. And, by doing so, they would be striking a much-needed blow for religious liberty and perhaps restoring some of the credibility they lost in the summer of 2012.

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About the Author

David Catron is a health care consultant and frequent contributor to The American Spectator. He blogs at Health Care BS and you can follow him on Twitter at @Catronicus.