Appeals Court Deals Blow To Contraceptive Mandate

A divided appeals court panel sided Friday with Ohio business owners who challenged the birth control mandate under the new federal health care law.

The business owners are two brothers, Francis and Philip M. Gilardi, who own Freshway Foods and Freshway Logistics of Sidney, Ohio., and challenged the mandate on religious grounds. They say the mandate to provide contraceptive coverage would force them to violate their Roman Catholic beliefs and moral values by providing contraceptives such as the morning-after pill for their employees. The law already exempts houses of worship from the requirement.

The ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit is one of several on the birth control issue, which likely will be resolved by the Supreme Court. There are at least three other rulings by federal appeals courts on the mandate: One sided with Oklahoma businesses; and two sided with the Obama administration in challenges brought by Pennsylvania and Michigan companies.

Writing for the majority, Judge Janice Rogers Brown wrote that the mandate "trammels the right of free exercise_a right that lies at the core of our constitutional liberties_as protected by the Religious Freedom Restoration Act."

Brown, an appointee of President George W. Bush, said that the mandate presented the Gilardis with a "Hobson's choice: 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."

-- Why should old man with no wife be forced to pay for contraceptive for young guys. --

One way or the other, you pay. "Insurance" (which is a bit of a misnomer in the case of health care coverage) is a pooled risk. Everybody in the pool shares risk, and the premiums vary to cover to total payout.

BUT, I completely agree, the cost passing should be opaque, in that a person who has no need for contraception, etc. should not see a line on his bill that he is covered for that.

Running the money for routine purchases (e.g., contraception) through an insurance plan does nothing but increase the price of the product, at least enough to cover the administration of the policies.

On the case itself, I see a hollow victory, beyond getting this case or a similar one before SCOTUS.

We conclude the district court erred in denying a preliminary injunction for the Gilardis on the grounds that their case was unlikely to succeed on the merits; therefore, we reverse the district court's denial of a preliminary injunction for the individual owners. Because the court premised its decision entirely on a question of law, we must remand for consideration of the other preliminary-injunction factors. See Chaplaincy of Full Gospel Churches, 454 F.3d at 304. We affirm the district court's denial of a preliminary injunction with respect to the Freshway companies.

In the strictly medical sense, contraception is not a preventive service, since it is meant to prevent an outcome of a completely voluntary activity.

A true preventative service prevents a condition that a person has no control over. For instance, no one can avoid being exposed to measles, but they can get a vaccine so they won’t get sick.

Even with preventative medicine like vaccines, I think people should pay for it themselves. Health insurance should not be a prepaid services plan; the price of health insurance is high precisely because people *do* look at it as a prepaid service plan.

a right that lies at the core of our constitutional liberties_as protected by the Religious Freedom Restoration Act.

Free Exercise is a pre-existing natural right. It does not require legislation to enforce it.

It DOES require a religious and faithful nation to exercise it, which is a big problem in the here and now.

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