On Nov. 1, the Gilardi brothers, devout Roman Catholics who operate their own fresh produce business in Ohio, won round two in a battle against the White House. The Obama administration tried to claim that freedom of religion means freedom to pray, not necessarily to practice your beliefs. Once you leave church, you have to obey government regulations, even when they conflict with your faith.
Francis and Philip Gilardi insisted on living their beliefs as they run their business. For a decade, they’ve provided health insurance for their 400 employees but excluded abortion drugs, contraception and sterilization because they conflict with Catholic teachings.
However, the Obama administration requires all health plans to provide them. On Jan. 2, 2013, the Gilardi brothers sued in federal court, asking for temporary protection from the $14 million annual penalty they would face for not complying. A lower federal court turned down the Gilardi brothers, but last Friday, the United States Court of Appeals for the District of Columbia granted their request.
Judge Janice Rogers Brown ruled that if you like your God, you can keep him. Your freedom to practice your faith isn’t just protected inside a house of worship. Quoting from the Bible, she reminded the government’s lawyers that “Faith without works is dead.” If the Gilardi brothers want to paint signs on their trucks saying, “It’s not a choice, it’s a child” and decline to provide contraception products to their employees, that’s their right.
Judge Brown cited a 1963 ruling by Chief Justice William Brennan that the government may not “penalize or discriminate against individuals because they hold religious views abhorrent to the authorities.”
The law appears to be on the Gilardi’s side. The Religious Freedom Restoration Act of 1993 says a person can opt out of a law if obeying it would substantially diminish their fidelity to their religious principles. There are exceptions, said Judge Brown, when the government has a compelling goal and no other way to achieve it. But Judge Brown made the common sense observation that there are other ways to provide contraceptives to women who need them.
These products already are dispensed at federally funded community health clinics and at Planned Parenthood sites. Access does not depend on employer coverage.
So why is the Obama administration doggedly waging this legal war? More than three dozen for-profit companies owned by Catholics, Mennonites and other people with religious scruples are in court, resisting the administration’s requirement. So far, six federal appeals courts have ruled on these cases, with four deciding for religious freedom and two siding with the Obama administration. It makes a Supreme Court showdown in 2014 almost inevitable.
The Obama administration has requested the court hear its case against David Green and his wife, who own Hobby Lobby craft stores and Mardel Christian bookstore. The Greens close their stores on Sundays and try to operate according to biblical principles, which in their view, means not providing the morning-after pills — known as Plan B and Ella — to employees.
When the Greens prevailed in lower federal court, the Los Angeles Times objected, saying “A hobby shop is not a church.” The New York Times called the court’s decision “a warped view” in that “some employers can get out of complying with the new law …”
Actually, nothing in the new law — the Affordable Care Act — guarantees coverage for birth control. The Secretary of Health and Human Services — a presidential appointee — decides what your plan covers. President Obama and Secretary Kathleen Sebelius said all plans must cover birth control. Future administrations can change that edict. Amazingly, women’s rights groups have not objected to leaving this matter to the whim of whoever occupies the White House.
The dissenting judge in the Gilardi decision, Harry T. Edwards, argued that the Gilardis cannot “invoke their personal religious values to deny employees the benefit of laws enacted to promote employee welfare.” But Edwards glossed over the fact that Congress didn’t enact the contraceptive requirement. It’s unlikely such a divisive mandate could have passed.
Blame the Obama administration for putting the mere convenience of birth control users ahead of Americans’ freedom to practice what they preach.
In the unlikely event the Gilardis and others do not prevail in the U.S. Supreme Court, the American people have another remedy. Elect a president who will respect both sides on this issue — and who will devise a solution that does not trample an employer’s “right to choose” his faith.
Betsy McCaughey is a former Lt. governor of New York and the author of “Beating Obamacare.”