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The D.C. Circuit Court has upheld a legal challenge to the provision of the Affordable Care Act (Obamacare) that mandates employer coverage of birth control, arguing that it "trammels" the expression of religious freedom. While the legal process over the issue isn't final, the decision hands a huge political victory to conservative activists that have long made this argument.

The case stems from a lawsuit filed by Freshway Foods and Freshway Logistics, an Ohio-based firm that does food service work. The owners of the firm, brothers Phil and Frank Gilardi, have long excluded coverage for birth control or abortion in their employee health coverage, as the American Center for Law and Justice notes, via RHRealityCheck. The Hamilton Journal-News reports that the firm makes its opposition to abortion very public:

Freshway Foods trucks bear signs stating, “It’s not a choice, it’s a child,” as a way to promote the owners’ anti-abortion views to the public, according to the legal complaint.

In the majority opinion (here or below), Judge Janice Rogers Brown, a George W. Bush appointee, argues that Obamacare's imposition of mandated coverage for birth control violates the Gilardi's rights. "As adherents of the Catholic faith, the Gilardis oppose contraception, sterilization, and abortion. Accordingly, the two brothers—exercising their powers as owners and company executives—excluded coverage of products and services falling under these categories." It then continues: "But along came the Affordable Care Act." In summary:

[W]e 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.

Among the rationales offered by Brown (and the other two judges that joined the opinion in parts – one also a Bush appointee; one, Carter) is that the government didn't demonstrate a compelling need for mandating the coverage. "What exactly," the opinion reads, "is the government trying to ameliorate?" And so:

The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer- provided plans, over whatever objections they may have. Such an endorsement—procured exclusively by regulatory ukase—is a “compel[led] affirmation of a repugnant belief.” … That, standing alone, is a cognizable burden on free exercise.

One of the dissenting opinions argues in opposition to this argument; that no religious burden exists on the brothers, just on the company. "They are not required to use or endorse contraception, and they remain free to openly oppose contraception. The Mandate requires nothing more than that the companies, not the Gilardis, offer medical insurance that includes coverage of contraceptive services for those employees who want it." One reporter suggested that the application of religious freedom to the company was an extension of the "'corporations are people' standard."

The next step on the lawsuit — filed by the Gilardis in January — isn't clear, but it seems likely that the government will appeal. This case could be on its way to the Supreme Court. One of a similar set of cases almost certainly is.

Hat-tip: Alice Ollstein

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