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Legal group calls D.C. Circuit's contraceptive mandate ruling 'partial victory,' plans to appeal to U.S. SC

By Jessica M. Karmasek | Nov 4, 2013

WASHINGTON (Legal Newsline) -- A pro-life legal group that focuses on constitutional law said it plans to ask the U.S. Supreme Court to review a case over the federal health care law's contraceptive mandate, despite a mostly favorable federal appeals court ruling Friday.

The American Center for Law and Justice said while the U.S. Court of Appeals for the District of Columbia's decision protects the rights of individuals who oppose the mandate on religious freedom grounds, the court declined to permit the companies themselves from bringing their own claims.

The ACLJ said it plans to appeal that aspect of the D.C. Circuit's ruling to the nation's high court.

In its 32-page majority decision, a divided D.C. Circuit ruled in favor of Francis and Philip Gilardi, owners of Freshway Foods in Ohio.

The court held that the mandate -- a regulation in President Barack Obama's health care law that requires businesses to include in their health plans coverage for contraception, sterilization and abortion-inducing drugs, or face significant penalties -- places a substantial burden on the religious beliefs of business owners whose religious beliefs forbid them to pay for those services.

However, the D.C. Circuit declined to accept the Gilardis' argument that their companies themselves -- Freshway Foods and Fresh Unlimited -- are entitled to bring their own religious liberty claims essentially on the ground that the U.S. Supreme Court has not yet addressed what the court called a question with "far-reaching" implications.

"While we are obviously pleased with the court's recognition that the HHS Mandate burdens the Gilardis' right to religious freedom as secured by the Religious Freedom Restoration Act, we are disappointed that the court failed to protect the rights of the companies involved," said Francis Manion, ACLJ's senior counsel and who argued the case before the federal appeals court.

"While this is a victory for the individual plaintiffs, the appeals court rejected a critical argument that the rights of the companies be protected as well."

The ACLJ, which is representing the Gilardis, said Friday it plans to file a petition for writ of certiorari, or review, with the U.S. Supreme Court this week asking it to take the case.

The two brothers, who are both Catholic, own and control two companies that are involved in the processing, packaging and transportation of fresh produce. Freshway Foods is a nearly 25-year-old family-owned fresh produce processor and packer, which serves 23 states and has 340 full-time employees. Freshway Logistics is a family-owned for-hire carrier of mainly refrigerated products serving 23 states for the last 10 years with about 55 full-time employees.

Both companies are located in Sidney, Ohio, about 40 miles north of Dayton.

To date, 39 for-profit business owners have filed legal challenges to the mandate. The ACLJ has filed seven cases in federal court, including the Gilardi case.

In addition to the direct challenges, the ACLJ has filed 13 amicus briefs backing other legal challenges to the mandate.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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