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Policy: Law

Fed appeal panel says Citizens United might end Obamacare's HHS mandate

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Beltway Confidential,Joel Gehrke,Obamacare,Supreme Court,Appeals Courts,Health and Human Services,Citizens United,Law

Citizens United, the 2010 Supreme Court ruling that bolstered political speech against campaign finance reform limitations, may also mean trouble for Obamacare's contraception coverage mandate, according to the second-highest court in the country.

Attorneys for Francis and Philip Gilardi argued that the Gilardis should not be required to provide contraception to their employees because it violates their religious beliefs.

The Gilardis own Freshway Foods and Freshway Logistics in Ohio and are devout Catholics. They argued that the Religious Freedom Restoration Act protects them from having to comply with the mandate, promulgated by the Department of Health and Human Services.

Writing for the U.S. D.C. Circuit Court of Appeals majority, Judge Janice Rogers Brown said the Obamacare birth control mandate put the Gilardis in an impossible position to provide health coverage for their 400 employees.

“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,” Brown wrote.

Brown also contemplated the possibility that Citizens United might relieve the Gilardis of having to comply with the HHS mandate.

"There is an appeal to this simple reasoning; after all, the free-exercise and free-speech rights are enshrined in the same constitutional provision, separated only by a semicolon," the decision further noted.

"Perhaps [the Gilardi's] constitutional arithmetic -- Citizens United plus the Free Exercise Clause equals a corporate free exercise right - will ultimately prevail," the decision held, without rendering judgement on that particular argument.

I first started wondering if Citizens United might affect the HHS mandate lawsuits in July, when the 10th Circuit Court ruled that Hobby Lobby, another company challenging the mandate, qualified as a person under the Religious Freedom Restoration Act.

That's a statutory question. Citizens United, famously, established as a matter of constitutional law that corporations, like individuals, enjoy free speech rights guaranteed under the First Amendment.

"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech," Justice Anthony Kennedy, long-regarded as the swing vote on the Supreme Court, wrote in the 2010 Citizens United opinion.

"If the anti-distortion rationale were to be accepted, however, it would permit government to ban political speech simply because the speaker is an association that has taken on the corporate form . . ."

The Justice Department, in defending the HHS mandate, effectively argued that people like the Gilardis, when in their capacity as business owners, do not enjoy their First Amendment rights to freedom of religion because they have taken on the corporate form.

By DOJ's reasoning, "the individual right disappears into the ether," according to the D.C. Circuit.

"This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure," Justice Kennedy wrote in the Citizens United opinion.

A constitutional lawyer offered another reason why the HHS regulation, which exempts some corporations for religious reasons but not others, is at odds with the Citizens United jurisprudence.

"[W]e're talking about for-profit corporations, right? But all religious organizations, including the Catholic Church, are corporations within the meaning of Citizens United," Michael Carvin, who is arguing another challenge to Obamacare, told the Washington Examiner in July. He is a partner with the JonesDay law firm in its Washington, D.C. office.

"If you interpret corporations of the kind they were considering in Citizens United, 501c3s, then clearly they can make religious-based claims because all churches are 501c3s.”

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