Taking a split approach, the D.C. Circuit ruled on Friday that profit-making corporations cannot make a religious challenge to the new health care law’s mandate that workers get birth-control and related medical coverage; however, if the firm is owned by only a few individuals, they can challenge it to defend their own religious objections, and they may well win.  The two major parts of the ruling split the three judges in differing ways.

The Supreme Court already has three cases awaiting its attention on the Affordable Care Act’s contraception coverage mandate — with differing outcomes in lower courts — and the somewhat unusual approach taken by the D.C. Circuit on Friday may simply add an additional impetus for the Court to take on the issue in the current Term.

Under the new health care law, employers with more than fifty workers on their payrolls must provide health insurance for their employees on a range of birth-control and pregnancy related services, including access to contraceptive drugs and devices.  Some seventy-five lawsuits have been filed across the country against the mandate, many by profit-making companies owned by individuals who oppose abortion or birth control on religious grounds.

The D.C. Circuit case (Gilardi v. U.S. Department of Health  & Human Services, Circuit docket 13-5069) involves two brothers — Francis and Philip Gilardi — who are the sole owners of Freshway Foods and Freshway Logistics, fresh-food processing companies based in Sidney, Ohio.  The brothers, who are Roman Catholic, object because of their faith to abortion, birth control, and sterilization.   They insist that they run their company in ways to carry out their religious beliefs so that their companies operate as religiously oriented firms.

They sued on behalf of the two corporations, and on their own behalf, contending that the mandate forces them and their firms to choose between their faith by denying the required coverage in their health plans, or paying penalties of $14 million for disobeying the mandate.

Judge Janice Rogers Brown wrote the main opinion issued on Friday, which drew varying support from her two colleagues.  Her opinion first concluded that the Freshway corporations are not individually “persons” capable of exercising a religious belief, and therefore cannot pursue a claim that the mandate offends the firms’ faith.  In this context, she wrote, “person” means an individual human being, for purposes of both the Constitution and the federal Religious Freedom Restoration Act.

That part of her opinion had the support of Senior Judge Harry T. Edwards, but it drew a dissent from Senior Judge A. Raymond Randolph, who argued that the panel did not need to reach that issue.

The second part of Brown’s opinion concluded that, because the Freshway companies are run as closely held corporations, each with just two owners, the brothers may sue in that capacity to assert their own religious objections to the mandate.  That right-to-sue part of the ruling was unanimous, with the support of both Judges Edwards and Randolph.

While the panel did not rule finally that the brothers’ challenge ultimately will win, the panel split two to one in declaring temporarily that the brothers’ challenge is likely to win in in the end, so the government was currently barred from enforcing the mandate against the brothers.  On that point, Judge Randolph joined with Judge Brown for the majority, and Judge Edwards dissented.

In discussing why the Gilardis were likely to win in the end, the Brown opinion was sharply critical of the defense that Justice Department lawyers had made of the need for the contraceptive and pregnancy-related coverage.

In the three cases that have already reached the Supreme Court, the Tenth Circuit ruled that profit-making companies can exercise religious beliefs and thus are protected from the mandate, while the Third and Sixth Circuits have ruled in the opposite way.

At least some of those cases will be ready for the Justices’ initial consideration in the next several weeks.

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Recommended Citation: Lyle Denniston, A split ruling on birth-control mandate, SCOTUSblog (Nov. 1, 2013, 12:21 PM), http://www.scotusblog.com/2013/11/a-split-ruling-on-birth-control-mandate/