A three-judge panel of the Court of Appeals for the D.C. Circuit issued a divided ruling  today that the Affordable Care Act's contraception coverage provision violates the religious liberty of two business owners. The majority ruling came from far-right Bush-43 nominee Janice Rogers Brown , and she was joined by Bush-41 senior judge Raymond Randolph.
Judge Brown opened her opinion with starkly political language more appropriate to a Republican convention than a judicial opinion:
Two years after our decision Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), 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 [of religion] ... [emphasis added]
With politically charged language like that, it was no surprise what her conclusion would be.
The case concerned the two Gilardi brothers and the Freshway corporations they own, a produce and trucking operation that employs about 400 people. The Gilardi brothers and their two corporations sued the Obama administration, contending that their religious liberties were violated by the administration's mandate that insurance plans provide women with contraception coverage without copay.
Judges Brown and Randolph rejected the claim that the Freshway corporations have a religious liberty right that can be violated, since they are not people. But they also ruled that the contraception coverage provision violates the brothers' rights under the federal Religious Freedom Restoration Act. Under RFRA, a law is invalid if it imposes a substantial burden on religious liberty, unless it is the least restrictive means to serve a compelling government interest.
The D.C. Circuit panel's majority ruled that the law fails in every respect. On the question of whether it imposes a substantial burden, Brown and Randolph concluded that the law forces the company's owners to "approve and endorse" the inclusion of contraceptive coverage in their companies' employer-provided plans, despite their religious objections to contraception. (It is not clear how obeying a law is the same as approving and endorsing it.) And they concluded that the interests underlying the contraception provision are not compelling – that is, that the government does not have a strong enough reason to ensure that women have access to affordable contraception.
The dissenting was Judge Harry Edwards, a Carter nominee and the only one of the court's six senior judges not put on the bench by a Republican president. He explained:
There are three reasons why the Mandate does not substantially burden the Gilardis' "exercise of religion." First, the Mandate does not require the Gilardis to use or purchase contraception themselves. Second, the Mandate does not require the Gilardis to encourage Freshway's employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages. Finally, the Gilardis remain free to express publicly their disapproval of contraceptive products. [emphasis in original]
He also recognized that protecting women's health is a compelling government interest.
Yesterday, Senate Republicans made clear their determination to prevent President Obama from filling the three vacancies on the court, filibustering the first nominee just as they had signaled they would do even before they knew who the president's three nominees would be. Today's opinion exemplified why. Including senior judges, who can serve on panels like the one making today's decision, Republican-nominated judges on the D.C. Circuit outnumber Democratic-nominated ones 9-5. And with Republicans having made a deliberate effort over the years to appoint conservative ideologues to the bench, a three-judge panel is more likely than not to have at least two staunch conservatives.
Just a couple of weeks ago, we saw Republicans shut down the government and threaten to destroy the nation's economy is the president did not adopt their policies. Similarly, since President Obama isn't nominating the people that a President Romney would have chosen for the D.C. Circuit, Senate Republicans have taken it upon themselves to limit the size of the court and keep a Democratic president from filling the three vacancies.
That is why it is so important to defeat the GOP effort to filibuster the president's nominees. For them, "elections matter" only when they win.