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Media Alerts - Gilardi v. United States Department of Health and Human Services
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November 1, 2013
  Gilardi v. United States Department of Health and Human Services
Headline: D.C. Circuit invalidates Affordable Care Act's contraceptive mandate under the Religious Freedom Restoration Act.

Area of Law: First Amendment, Religious Freedom Restoration Act

Issue Presented: Whether the contraceptive mandate imposed by the Affordable Care Act violates the right of free exercise protected by the Religious Freedom Restoration Act.

Brief Summary: Freshway Foods and Freshway Logistics, two closely-held corporations taxed under Subchapter S of the Internal Revenue Code, were required by the Affordable Care Act to provide their employees with insurance coverage of all FDA-approved contraceptive methods and sterilization procedures and patient education and counseling for all women with reproductive capacity. The companies and their owners, practicing Catholics Francis and Philip Gilardi, brought suit in the United States District Court for the District of Columbia, alleging that the mandate violated their free exercise of religion under the Religious Freedom Restoration Act (RFRA). The district court denied the companies' request for a preliminary injunction, finding that companies could not "exercise" religion and thus could not demonstrate a substantial burden on religious exercise under RFRA. The court also denied the Gilardis' request for a preliminary injunction, finding that any burden on their religious beliefs was indirect.

A divided panel of the United States Court of Appeals for the District of Columbia Circuit affirmed the denial of corporate standing and reversed as to the Gilardis, concluding that the mandate substantially burdens the religious exercise of the Gilardis, does not further a compelling government interest, and is not the least restrictive means of furthering that interest. Although the court rejected corporate standing to enforce free exercise rights under RFRA, the court permitted the Gilardis' challenge because their injury is separate and distinct from the injury to the corporation. The court found that the mandate substantially burden the Gilardis' free exercise in violation of RFRA by pressuring them to choose between violating their religious beliefs in selecting a plan or paying large penalties. The court also found that the contraceptive mandate requires that owners of a company meaningfully approve and endorse the inclusion of contraceptive coverage in their companies' employer plans, compelling them to affirm a repugnant belief.

Turning to RFRA's strict scrutiny inquiry, the court found the government's asserted interests of safeguarding the public health, protecting a woman's compelling interest in autonomy, and promoting gender equality were either too broadly formulated or disingenuous given the private nature of the rights. The court then held that, even if the government did have a compelling interest, the contraceptive mandate was insufficiently narrowly tailored. The court found that the government has viable alternatives and that the mandate is underinclusive by design. Since the district court denied the preliminary injunction on the likelihood-of-success prong, the D.C. Circuit remanded for the court to consider the other factors.

Senior Circuit Judge Randolph concurred, arguing that since the government can only enforce the mandate by compelling the owners to act, the court should not address the unresolved question of whether for-profit corporations can exercise religion. He also argued that since the corporate veil is lifted for corporations under subchapter S for the purpose of taxation, it would be incongruous to emphasize the corporate veil in rigid form for RFRA purposes.

Senior Circuit Judge Edwards concurred in part and dissented in part, agreeing with the court on the issues of standing but strongly disagreeing on the merits of free exercise and RFRA. He argued that the contraceptive mandate does not substantially burden the owners' free exercise of religion and that the government's compelling interests justify the mandate.

For the full text of this opinion, please visit

Panel (if known): Brown, Randolph, and Edwards.

Argument Date (if known): September 24, 2013

Date of Issued Opinion: November 1, 2013

Docket Number: 13-5069

Decided: Affirmed in part, Reversed in part

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): Francis J. Manion, Colby M. May, and Carly F. Gammill for appellants. Alisa B. Klein, Stuart F. Delery, Ronald C. Machen, Jr., Beth S. Brinkmann, and Mark B. Stern for appellee.

Author of Opinion: Brown

Concurrence by: Randolph

Dissent by: Edwards

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 11/01/2013 03:55 PM     DC Circuit  

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