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“Pro-Choice” Obama Administration’s HHS Mandate Offers No Choice For Religious Objectors


Edward White

March 8, 2013

5 min read




The American Center for Law & Justice ("ACLJ") represents Frank and Phil Gilardi and their two companies, Freshway Foods and Freshway Logistics. These Ohio-based companies, which process, pack, and deliver fresh produce to twenty-three states, have about 400 full-time employees.

Frank and Phil Gilardi are Catholics, and they run their companies in accordance with their faith. They treat their customers and employees well and donate to various charities.

To express their religious views about the sanctity of human life to the public, the Gilardis have placed a sign on the back of their Freshway Foods trucks stating that "It's not a choice, it's a child".

Also, in keeping with their Catholic faith, the Gilardis have provided their employees with health care and prescription drug insurance that specifically excludes coverage for contraceptives, abortion, and sterilization procedures for the past ten years.

The federal government, however, is mandating that the Gilardis violate their Catholic faith and agree to provide such coverage starting on April 1, 2013, or face annual penalties exceeding $14 million.

The ACLJ filed a lawsuit on behalf of the Gilardis and their companies this past January. In February, we filed a motion for a preliminary injunction requesting that the federal trial court allow the Gilardis to continue to run their businesses consistent with their religious beliefs until the legal issues raised in the case are fully resolved.

This past Sunday, March 3, 2013, the federal trial judge denied our motion, which means that the Gilardis and their two companies will have to either violate their religious faith starting on April 1st or begin incurring significant penalties that will ruin their businesses unless we receive an injunction from an appellate court.

On Monday, March 4th, we filed an appeal from the trial court's denial of our motion. The case then moved to the United States Court of Appeals for the District of Columbia Circuit.

Two days later, we filed an emergency motion with the appellate court requesting that it grant our clients an injunction so they do not have to make the choice on April 1st of either violating their faith or incurring financial penalties.

As we explain in our motion, "An injunction pending appeal will preserve the status quo, protect Plaintiffs' religious exercise, and not harm the interests of Defendants or the public, while [the appellate court] resolves the significant legal issues at hand. . . . The enactment and imminent enforcement of the Mandate against Plaintiffs created the present controversy. Before then, Plaintiffs exercised a freedom to fashion a health plan pursuant to their religious beliefs, which is what Plaintiffs have been doing for the last ten years and what they want to continue to do."

In addition to our request for an injunction, we asked the appellate court to resolve the case on an expedited basis because our clients face imminent and irreparable harm and the legal issues raised in the case have national importance and warrant a final resolution without delay.

The appellate court should rule on our emergency motion in the coming days.

The Gilardi case is one of five lawsuits the ACLJ has filed against the HHS Mandate. The ACLJ has also filed sixteen friend-of-the-court briefs in support of the plaintiffs in other Mandate challenges. You can read more about our efforts against the Mandate here.

We anticipate that the legal issues raised in the various Mandate cases will ultimately be resolved by the Supreme Court of the United States.

What one must understand about these lawsuits is that the employers challenging the Mandate are not seeking to stop anyone's access to contraceptive methods, abortion, or sterilization procedures or to impose their religious views on others.

Rather, these employers simply do not want to be forced to pay for goods and services in violation of their faith. This is true whether or not their employees ever use those goods and services.

Put differently, the HHS Mandate is the equivalent of the federal government requiring employers that hold religious objections to abortion to purchase, under pain of penalty, abortion coupons from Planned Parenthood and to hand those coupons to their employees so that they can obtain abortions at no cost to themselves. Even if no employee ever uses one of those coupons for an abortion, the fact that the objecting employers had to purchase the coupons in the first place is where the violation of their religious rights takes place.

A decision recognizing that the HHS Mandate violates the Gilardis' rights would simply mean that employees who utilize the goods and services at issue would continue to pay for them themselves. The Gilardis have raised no objection to what employees do on their own time, with their own money.

In short, through the HHS Mandate, the "pro-choice" Obama Administration is giving employers that conscientiously object to facilitating the provision of abortion, contraceptives, and/or sterilization the following choice: violate their faith and comply with the Mandate or pay staggering annual penalties to the federal government.

That type of choice is no choice at all.

The right to freely exercise one's religion in accordance with the teachings of one's faith, absent a truly compelling governmental need to require contrary behavior, protects businesses, their owners, and other groups and individuals from being placed in this type of dilemma.

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