The D.C. Circuit’s recent decision addressing the contraception mandate – Gilardi v. United States Department of Health and Human Services – got some things right but many more things wrong. The contraception mandate is the Affordable Care Act’s requirement that health care plans, now mandatory for large employers, include all FDA-approved contraception without any cost sharing by employees.
Francis and Philip Gilardi own and manage Freshway Foods and Freshway Logistics, fresh food processing and delivery companies. The brothers are religiously opposed to contraception and argued that the mandate violates their corporations’ and their own religious rights under the Religious Freedom Restoration Act (RFRA). Under RFRA, “persons” are entitled to exemptions from federal laws that impose a substantial burden on their religious conscience unless the challenged law passes strict scrutiny. A divided panel of the D.C. Circuit held that the brothers were entitled to an exemption from the mandate under RFRA.
What the Gilardi Court got right. The Gilardi Court held that secular corporations are not “persons” capable of religious exercise and therefore cannot bring a RFRA claim. Because RFRA draws from Free Exercise Clause jurisprudence, the D.C. Circuit took the occasion to examine whether corporations had free exercise rights. It rejected such a notion, observing that the Supreme Court has never extended free exercise protection to secular corporations and “has expressed strong doubts about the proposition.” “When it comes to the free exercise of religion . . . the [Supreme] Court has only indicated that people and churches worship.”
Yet another appeals court has issued an opinion about a for-profit corporation’s challenge to the contraceptive mandate of the Affordable Care Act. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. This time, the D.C. Circuit ruled in Gilardi v. HHS that the Gilardis, two Catholic brothers who own Freshway Foods and Freshway Logistics and oppose contraception, sterilization and abortion, are entitled to a preliminary injunction because they are likely to succeed on their claim that the mandate violates their free exercise rights as well as the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” The D.C. Circuit’s action is consistent with the Tenth Circuit’s ruling that the arts-and-crafts chain Hobby Lobby demonstrated that the mandate substantially burdened its exercise of religion, but at odds with rulings against secular, for-profit companies and for the government by the Third and Sixth Circuits.
One aspect of Gilardi is distinctive. Although the Third and Sixth Circuits, ruling for the government, decided that for-profit, secular corporations cannot exercise religion under either the Free Exercise Clause or RFRA, the Tenth Circuit, in support of Hobby Lobby, determined that such corporations are persons who can exercise religion under RFRA. The D.C. Circuit offered a hybrid. Although two judges – Janice Rogers Brown and A. Raymond Randolph – ruled that the Freshway Companies are not persons under either the Free Exercise Clause or RFRA, they nonetheless held that the Gilardis could bring suit because the Freshway Companies are closely held corporations with only the two brothers as owners and shareholders. In that context, the court decided, the brothers suffered a concrete and personal injury and could likely prove that their religion was substantially burdened by the mandate.
The diverse circuit court rulings risk turning the contraceptive mandate issue into a debate over corporate form and institutional rights. If corporations engage in speech under the First Amendment – Citizens United – why can’t they exercise religion?
One of the glaring things revealed by a review of the briefs in Shelby County v. Holder is the dearth of serious constitutional scholars in the fray supporting the conservative attack on the Voting Rights Act. On Shelby County’s side are the predictable array of political scientists like Abigail Thernstrom, election policy hacks like Hans von Spakovsky, and Reagan-era war horses like John Eastman. But where are the leading conservative constitutional thinkers on this – Mike McConnell, Eugene Volokh, Randy Barnett, Gary Lawson, and Steve Calabresi? None of these bright-light conservative names grace the briefs on behalf of Shelby County and, so far, their silence has been deafening in the public debate. As University of Kentucky law professor Josh Douglas has pointed out over at PrawfsBlawg, it’s really hard to find a credible academic to provide “balance” to a panel discussion on Shelby (though Cato’s Ilya Shapiro has gamely offered to fill this void).
It’s been 40 years since the Supreme Court protected a woman’s right to make a decision about whether to have an abortion, and some are still trying to take that right away. In the world of abortion politics that’s dismaying -- but certainly not shocking news.
It’s been longer still since the Court first protected the right to contraception in Griswold v. Connecticut in 1965. And while many of us in the reproductive rights movement have long known that our opposition is keen to limit access to birth control as well, that largely came as news to the public. Watching in disbelief, many turned to activism as the availability of affordable contraception was attacked time and again this last year. Indeed, recently national attention has been laser-focused on birth control -- whether women should have insurance coverage for it, and what to do about the objections of employers who want nothing to do with it.
The federal contraceptive coverage rule -- one of the greatest advances in women’s health policy in decades -- guarantees insurance coverage of birth control, with an exception for houses of worship. Right off the bat a small but vocal opposition came out swinging, arguing that the rule is an unparalleled violation of religious liberty. These groups did not only want a sweeping set of loopholes, they pushed -- and are still pushing -- for the rule to be dismantled altogether, so that no woman would have its benefits, no matter where she works.
by Leslie C. Griffin, William S. Boyd Professor of Law, University of Nevada, Las Vegas, William S. Boyd School of Law
The preventive care provisions of the Affordable Care Act (ACA), which include coverage of women’s reproductive health, took effect on January 1. To date, the thirteen district courts’ and three appeals courts’ decisions involving secular, for-profit companies’ challenges to the ACA’s contraceptive insurance mandate are all over the map. They lack a coherent rationale and reasoning. Instead, the courts should rule consistently that the exemption requested by the plaintiffs violates the Establishment Clause.
According to the contraceptive coverage mandate, employee group health benefit plans must contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Numerous secular, for-profit companies and their Catholic, Christian or Mennonite owners challenged the mandate as a violation of their constitutional free exercise rights and the statutory protection of the Religious Freedom Restoration Act, which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.”
Among the plaintiffs in the secular, for-profit lawsuits are Weingartz Supply Company, which sells outdoor power equipment; Hobby Lobby, an arts and crafts store; Mardel, Inc., a bookstore and educational supply company; Hercules Industries, which manufactures and distributes heating, ventilation and air conditioning (HVAC); O’Brien Industrial Holdings, LLC, which mines, processes and distributes refractory and ceramic materials and products; Tyndale House Publishers, a Christian publishing company; American Pulverizer Co., Springfield Iron and Metal, LLC, Hustler Conveyor Co., and City Welding, businesses engaged in scrap metal recycling and manufacturing of scrap-related machines; Korte & Luitjohan Contractors, a construction business; Domino’s Farms, a property management company owned by Thomas Monaghan, the founder of Domino’s Pizza; Sharpe Holdings, Inc., a non-bank holding company including farming, dairy, creamery, and cheese-making; Conestoga Wood Specialties Corp., a cabinet and wood specialties company; Grote Industries, which manufactures vehicle safety systems; Triune Health Groups, which helps injured workers reenter the workplace; and Autocam Industries, which provides automotive parts.