On Friday, a divided Seventh Circuit Court of Appeals ruled in favor of two for-profit companies and their owners, holding that they are both likely to win their constitutional challenges to the birth control benefit in the Affordable Care Act. The decision is the fifth federal appellate court decision to rule on the mandate, and the broadest of all those rulings so far.
The decision came in the consolidated cases of construction company Korte & Luitjohan Contractors and its two owners, and vehicle safety parts manufacturing company Grote Industries and its six family owners. Both companies and their owners filed lawsuits challenging the benefit as a violation of their First Amendment religious exercise rights and as a violation of the Religious Freedom Restoration Act (RFRA), and lost their challenges at the district court. Their appeals were combined and heard together by the Seventh Circuit in May.
Friday’s decision is the first to find both owners individually and their for-profit companies are protected from the mandate under the RFRA. “In short,” the court wrote, “[the] RFRA operates as a kind of utility remedy for the inevitable clashes between religious freedom and the realities of the modern welfare state, which regulates pervasively and touches nearly every aspect of social and economic life.” From this broad explanation of the RFRA’s goal, the Seventh Circuit finds no problem interpreting the statutory language of the statute, which prohibits the federal government from placing a substantial burden on a “person’s exercise of religion,” to apply to secular, for-profit companies.
The dissent notes the scope of the majority’s opinion has the potential to “reach far beyond contraception” and to “invite employers to seek exemptions from any number of federally-mandated employee benefits to which an employer might object on religious grounds.” To illustrate the point, the dissent offers three hypotheticals: one involving an employee who develops amyotrophic lateral sclerosis (ALS), a progressive neurological condition that could be cured by embryonic stem cell research; one involving a secular, for-profit company owned by Christian Scientists who want to provide health-care coverage for only facilities that conform to the “cure by prayer” approach to medicine embraced by the business’ owner; and a scenario in which a gay employee requests leave from his boss under the Family and Medical Leave Act so that he and his husband may attend the birth of their child via surrogacy. Because the RFRA applies to any federal law, the dissent argues, under the analysis advanced in the majority opinion in each of those hypotheticals, employers could successfully argue their religious exercise rights were infringed on by facilitating the treatment or time off.
Sex. Abortion. Parenthood. Power.
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All in all, five federal appellate courts have now ruled on the constitutional challenges. Courts of appeals in the Third and Sixth Circuit courts have ruled against for-profit religious rights, while appeals courts in the Tenth Circuit, D.C. Circuit, and now Seventh Circuit all have found in favor of such rights.
The Supreme Court is scheduled to consider three challenges to the mandate during its conference on November 26. Last week, attorneys in the Gilardi v. United States Department of Health and Human Services case filed a petition for review of a recent Sixth Circuit decision ruling against two for-profit companies in Ohio, bringing the total number of petitions before the Supreme Court on the mandate to four. With the split in the appellate courts and the pending petitions before the Roberts Court this month, it’s all but certain the Supreme Court will take up the issue sometime this term.