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ACLJ Presents Oral Argument in the D.C. Circuit in the Gilardi HHS Mandate Appeal

Women pro-choice protesters gather in judges' gowns and hold gavels outside the Supreme Court in Washington.

Yesterday, I had the privilege of arguing in the United States Court of Appeals in Washington, D.C. in one of our seven cases challenging the so-called HHS Mandate.  

The Mandate requires all for-profit employers who have employee health plans to include in those plans coverage for contraceptives, sterilization, and abortion-inducing drugs such as the morning-after pill.  

The Mandate allows no exceptions for for-profit employers whose religious beliefs don’t allow them to pay for such things.  At the same time, the government has provided exemptions from the Mandate for religious and non-religious reasons for the employers of literally one-third of the Nation.  

It’s our position, backed up by Supreme Court case law applying the Religious Freedom Restoration Act, that the government can’t do that.  Once the government makes massive exceptions to a rule or law, it has to show that it has a “compelling interest” in not granting an exception for religious believers who also seek exemptions.

In this case, we represent Frank and Phil Gilardi and their two companies, Freshway Foods and Freshway Logistics.  The Gilardis are Catholic, and they run their companies pursuant to their faith.

In keeping with their Catholic faith, the Gilardis have ensured for the past decade that they do not pay for any contraceptive methods, including abortion-inducing drugs, and sterilization procedures in their employee health plan.  If their employees choose to purchase such products and services with their own money, they are free to do so.

The HHS Mandate, however, would require the Gilardis and their companies to pay for such products and services in violation of their Catholic faith.  Failure to comply would result in annual penalties of more than fourteen million dollars.

This past January, we filed a lawsuit on behalf of the Gilardis and their companies against the federal government to prevent the application of the Mandate.  The U.S. District Court denied our motion for a preliminary injunction on the grounds that (1) the Mandate doesn’t force the Gilardis to do anything since it only technically applies to their companies, and (2) the companies can’t sue because they don’t “exercise religion.”  We appealed that decision and, yesterday, the Court of Appeals heard argument on our appeal.  (The appeals court had previously granted the Gilardis an injunction pending appeal.)

The government’s argument is a classic example of “heads I win, tails you lose.”  

Under the government’s logic, a law requiring all restaurants and food establishments to sell pork could not be challenged by a Jewish or Muslim business owner who chooses to operate as a corporation.  

A law requiring all retail businesses to be open seven days a week could not be challenged by a Sabbath observing family that owns a company.  

A law requiring all OB/GYN medical practices to do abortions could not be challenged by pro-life physicians. 

The business couldn’t sue -- it can’t “exercise religion.”  The owners couldn’t sue -- the law doesn’t technically require them do anything, only their companies.

Fortunately, the government’s position has very little, if any, legal support.  And it was encouraging to see yesterday that, at least two of the three judges hearing the Gilardis’ appeal, expressed skepticism about the government’s arguments. 

We are cautiously optimistic that the court will rule that the Gilardis can continue doing business in a way consistent with their faith without jeopardizing their and their families’ livelihoods.

Meanwhile, we received word late last week that our case on behalf of St. Louis businessman, Frank O’Brien, and his family’s business has been scheduled for oral argument on October 24th in the Eighth Circuit Court of Appeals in St. Paul, Minnesota.

O’Brien’s case was the first legal challenge to the HHS Mandate filed on behalf of a for-profit corporation.  The U.S. District Court dismissed our case (although the appeals court has granted an injunction pending appeal) and it is the appeal from that dismissal that will be argued in St. Paul. 

We look forward to obtaining a favorable result from that court that will allow O’Brien and his company to continue to, in the words of the company motto, “make our labor a pleasing offering to the Lord while enriching our families and society.”

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