Religious Freedom Prevails Over Obamacare in the D.C. Circuit Court [Contributor]

In Gilardi v. Department of Health and Human Services, handed down on November 1, 2013, the D.C. Circuit of Appeals examined whether the contraceptive mandate imposed by the Affordable Care Act violates the right of free exercise protected by the Religious Freedom Restoration Act. In its ruling, the D.C. Circuit invalidates the Affordable Care Act’s contraceptive mandate under the Religious Freedom Restoration Act.

Sometimes you react to things with cool and detached logic, and sometimes you react to things more viscerally.

The Affordable Care Act (ACA) is something to which I react rather viscerally. The law requires every human being who breathes (both by natural and artificial means) to buy government-approved health insurance at government-approved prices on government-approved exchanges, which may, or may not, work. It will not decrease health-care costs. It will not increase quality of care. It will not decrease the national debt. It is a disgrace.

Perhaps the most pernicious portion of the law, however, is the mandate that employers supply (through government-mandated insurance policies) abortifacients, sterilization, and birth control to their employees. There are exemptions to this mandate, e.g.,: grandfathered plans, plans of some religious organizations, and some small businesses. If you are not lucky enough to be a member of the exemption clique, you must provide these services, no matter your religious objection to abortion, sterilization, or birth control. In other words, if you are unlucky enough to own a non-exempt business and have a moral compunction against abortion, then the federal government has a message for you: tough luck.

Now, you may think to yourself, “But we have a First Amendment that protects our right to free exercise. There is no way the government could force me to purchase abortion services, sterilization medications, or birth control against my will.”

Well, you would be right, that is if we enjoyed an Administration that thinks deeply (as you undoubtedly have) about the free exercise of religion. We do not enjoy such an Administration, however. Instead, this Administration, in a deeply disturbing case (colloquially known as Hosanna-Tabor) has gone so far as to argue the federal government should possess certain veto powers over the firing of church ministers. Thankfully, the Supreme Court unanimously rejected the Administration’s arguments. We are not dealing with those who robustly defend religious liberty.

As you can imagine, there are numerous court challenges to the ACA abortion, sterilization, and birth-control mandate. The New York Times puts the number of challenges at around forty. One of those challenges has now reached the D.C. Circuit Court of Appeals, which many see as the most important Court of Appeals, excepting only the Supreme Court.

This appeal came to the D.C. Circuit Court on a denial of a preliminary injunction. Because of this, the opinion, a 2-1 split authored by Janice Rogers Brown (a daughter of an Alabama sharecropper and a former California Supreme Court Associate Justice), is not as robust as a full opinion otherwise would be. That noted, the opinion is certainly indicative, and that indication is good for religious liberty.

The government began by arguing the Petitioners (the Gilardi’s, who are staunchly Catholic) could not challenge the law because they run a corporation. The Court, after a long analysis, put this argument to bed. While it might be an open question whether a corporation alone has sufficient personhood to challenge laws under the Religious Freedom Restoration Act (RFRA), there certainly is not a question that the Gilardis are persons, and, as such, can challenge under RFRA.

The government also argued that the mandate did not substantially burden the Gilardis’ religion because it was their company through insurance policies, and not them personally, that was providing the abortion, sterilization, and birth-control. Judge Brown dismissed this highly troubling argument with a simple paragraph:

The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans, over whatever objections they may have. Such an endorsement—procured exclusively by regulatory ukase—is a “compel[led] affirmation of a repugnant belief.” See id. That, standing alone, is a cognizable burden on free exercise. And the burden becomes substantial because the government commands compliance by giving the Gilardis 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. If that is not “substantial pressure on an adherent to modify his behavior and to violate his beliefs,” we fail to see how the standard could be met.

At this point, the arguments turned to whether the government had a sufficiently compelling justification for forcing the Gilardis to violate their religious faith. In this vein, the government argued in vague terms that the mandate safeguards public health, protects a woman’s interest in personal autonomy, and promotes gender equality. The Court addressed and dispatched each of these arguments in turn. In dispatching the gender equality argument, Judge Brown noted the Supreme Court has expressly rejected the argument that the right to abortion includes the right for others to pay for your abortion.

And, finally, the government argued there is no less restrictive mean for accomplishing the non-compelling justifications it proffered. In other words, the only way to effectively promote gender equality is to force business owners (who are primarily men) pay for women’s abortions, sterilization, and birth-control.

Now, I am no grand feminist theorist, but the government’s stance seems incredibly paternalistic and insulting to women. Likewise, the least restrictive way to promote personal female autonomy is for the government to trample religious freedom and force primarily men to give women stuff? Huh? Come again?

Of course, there are a myriad of less restrictive ways the government could provide these items to women who want them.

For example, the government could simply redirect monies from its discretionary spending pool to a fund that would provide to any woman who desires them the items covered by the mandate. Or the government could pass a new tax specifically for the purpose of providing the items mandated. (Although, I can’t imagine a tax that would undoubtedly be dubbed “the abortion tax” would go over that well.) Or the government could require women whose employer-provided insurance policies do not provide the items mandated to purchase a special insurance policy that would provide them with those items; that is if the women do not have a religious compunction against abortion, sterilization, or birth control. The government could even provide subsidies for those women who might not be able to afford the special insurance policy.

I suspect the reason the government does not want to do any of these things, however, is: (1) it would have to repeal the law prohibiting the federal government from funding abortions, and (2) all these options would be highly unpopular.

Well, you know what federal government? Tough luck. Our religious freedoms trump your desire to not work too hard.

And then there is the problem of under-inclusivity. This is the idea that the mandate does not cover a tremendously large amount of insurance plans, and, therefore, does not cover a tremendously large amount of people. By one estimate, 190 million people would be covered under insurance plans exempted from the mandate. If providing abortion, sterilization, and birth control to all were really a compelling governmental interest, would the government voluntarily allow 190 million people to go without?

In fine, the Gilardis won this round, and a preliminary injunction prohibiting the government from enforcing the mandate against them was granted. Ultimately, the Supreme Court will decide the mandate issue, and if this D.C. Circuit opinion is any indication, religious freedom will prevail.

Marco is Managing Partner at Brown Law, LLC, a foodie, and the dad of the cutest kid in the world. You can find him at Brown Law and at Eating Salt Lake City.