The court started its opinion by stating “we are asked to revisit the behemoth known as the Affordable Care Act … we must determine whether the contraceptive mandate imposed by the Act 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. We conclude it does.”
“The query is simple: do corporations enjoy the shelter of the Free Exercise Clause? Or is the free-exercise right a ‘purely personal’ one, such that it is unavailable to corporations and other organizations because the historic function of the particular guarantee has been limited to the protection of individuals?” In response to this query, the D.C. Circuit found that it had no basis for concluding that a secular organization can exercise religion. However, if the companies have no claim to enforce—and as nonreligious corporations, they cannot engage in religious exercise—we are left with the obvious conclusion: the right belongs to the Gilardis, existing independently of any right of the companies, therefore satisfying the “separate and distinct” exception to the shareholder-standing rule.
The D.C. Circuit characterized the dispute as follows: “The only dispute touches on the characterization of the burden. The burden is too remote and too attenuated, the government says, as it arises only when an employee purchases a contraceptive or uses contraceptive services. We disagree with the government’s foundational premise. The burden on religious exercise does not occur at the point of contraceptive purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a healthcare plan. In other words, the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties.”
The court assumed the existence of a compelling interest, but was unable to see how the contraception mandate is “the least restrictive means of furthering that interest.” The court held that the mandate was “self-defeating” and “unquestionably underinclusive.” The problem here is that small businesses, businesses with grandfathered plans, and an array of other employers are exempt either from the mandate itself or from the entire scheme of the ACA.
For a copy of the decision, click here.