WASHINGTON (AP) — A divided appeals court panel sided Friday with Ohio business owners who challenged a U.S. Department of Health and Human Services (HHS) birth control mandate.
The owners are two brothers, Francis and Philip M. Gilardi, who own Freshway Foods and Freshway Logistics of Sidney, Ohio. They 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 Patient Protection and Affordable Care Act (PPACA).requires employers to offer a package of high-value preventive services without imposing deductibles, co-payments or other cost-sharing requirements on the patients using the services.
PPACA gave the HHS secretary the authority to develop the preventive services package. HHS Secretary Kathleen Sebelius later agreed with a preventive services package advisory panel that the package should include contraceptive products and services.
HHS regulations already exempt houses of worship and some other nonprofit religious employers 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 HHS 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.”