Bench Memos

D.C. Circuit Ruling Against HHS Contraceptive Mandate

A divided panel of the D.C. Circuit ruled this morning, in Gilardi v. U.S. Dep’t of Health and Human Services, that two brothers, Francis and Philip Gilardi, who own and operate a food-supply company are entitled under the federal Religious Freedom Restoration Act to a preliminary injunction against imposition of the HHS mandate on contraception and abortifacients. Based only on a very quick skim, I provide this high-level summary:

1. The primary opinion, by Judge Janice Rogers Brown, rules, first, that the closely-held companies that the Gilardis run do not have any rights under RFRA. Judge Brown determines that “secular corporations” do not have free-exercise rights. And although the line between secular and religious corporations might not be easy to draw (and does not turn on the for-profit/nonprofit distinction), the plaintiff companies conceded that they are religious corporations. (Slip op. at 7-15.)

But, Brown rules, the Gilardis themselves have been injured by the HHS mandate in a way that is separate and distinct from the injury to their companies. (Slip op. at 15-17.) The HHS mandate burdens their exercise of religion by pressuring them to approve and endorse the inclusion of objectionable coverage in their companies’ health plans. “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.” (Slip op. at 20; see generally pp. 17-23.) The government’s supposedly compelling interest is nebulous (slip op. at 23-28), and even if it were compelling, the HHS mandate is not the least restrictive means of furthering that interest (slip op. at 28-32.)

2. In his opinion concurring in the judgment, Judge Raymond Randolph declines to join what he calls Brown’s unnecessary ruling on the complex question of corporate free-exercise rights. He also emphasizes that the status of the Gilardis’ companies as subchapter S corporations gives special force to the conclusion that they are individually burdened.

3. In a long dissent that I have not yet skimmed beyond the first pages, Judge Harry Edwards opines that the Gilardis aren’t substantially burdened by the HHS mandate and that, even if they were, the mandate’s application would survive RFRA’s strict scrutiny.

Petitions for certiorari from three federal appellate rulings on the HHS mandate are already before the Supreme Court. It is a very safe bet that the Court will grant review in one or more of the cases. Today’s ruling makes it all the more likely that the Court will ensure that the questions presented extend beyond the RFRA rights of for-profit corporations to include the rights of their individual owners.

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