ACLJ to ask Supreme Court to Take HHS Mandate Case; Partial Victory at Appeals Court Does Not Go Far Enough

(Washington, DC) - The American Center for Law and Justice (ACLJ), a pro-life legal organization that focuses on constitutional law, said today that while a decision by a federal appeals court protects the rights of individuals who oppose the HHS mandate on religious liberty grounds, the court declined to permit the companies themselves from bringing their own religious liberty claims –  a decision that will be appealed to the U.S. Supreme Court.

In today’s decision, posted here, the U.S. Court of Appeals for the District of Columbia ruled in favor of Francis and Philip Gilardi, owners of Freshway Foods of Sidney, Ohio. The court held that the so-called “HHS Mandate” – a regulation requiring businesses to include in their health plans coverage for contraception, sterilization, and abortion-inducing drugs or face massive penalties – places a substantial burden on the religious beliefs of business owners whose religious beliefs forbid them to pay for those services.

The Court, however, declined to accept the Gilardis’ argument that their companies themselves – Freshway Foods and Fresh Unlimited – are entitled to bring their own religious liberty claims essentially on the ground that the U.S. Supreme Court has not yet addressed what the Court of Appeals called a question with “far-reaching” implications.

“While we are obviously pleased with the Court’s recognition that the HHS Mandate burdens the Gilardis’ right to religious freedom as secured by the Religious Freedom Restoration Act, we are disappointed that the Court failed to protect the rights of the companies involved,” said Francis J. Manion, Senior Counsel of the ACLJ who argued the case at the D.C. Court of Appeals. “While this is a victory for the individual plaintiffs, the appeals court rejected a critical argument that the rights of the companies be protected as well.”

The ACLJ says it plans to file a Petition for Writ of Certiorari with the U.S. Supreme Court next week asking the high court to take the case.

The ACLJ represents Francis A. Gilardi, Jr. and Philip M. Gilardi, two brothers who own and control two companies that are involved in the processing, packaging, and transportation of fresh produce. The companies include: Freshway Foods, a nearly 25 year old family-owned fresh produce processor and packer, which serves 23 states and has 340 full-time employees.  Also represented: Freshway Logistics - a family-owned for-hire carrier of mainly refrigerated products serving 23 states for the last 10 years with approximately 55 full-time employees.  Both companies are located in Sidney, Ohio; a city in west-central Ohio located about 40 miles north of Dayton.

The owners, who are Catholic, contend that the HHS mandate requiring coverage for contraception, sterilization, and abortion-inducing drugs – violates their religious beliefs.

To date, 39 for-profit business owners have filed legal challenges to the Mandate. The ACLJ has filed 7 cases in federal court including the Gilardi case.

In addition to the direct challenges, the ACLJ has filed 13 amicus briefs backing other legal challenges to the HHS mandate.

Led by ACLJ Chief Counsel Jay Sekulow, the ACLJ is based in Washington, D.C.