Contraceptive Mandate Dealt a Blow

You can add this to the Supreme Court's ever-growing pile of birth control mandate appeals to review: An appeals court has sided with two business owners who say that providing access to contraceptives in employee healthcare plans — part of the Affordable Care Act and known as the contraceptive mandate — contradicts their right to religious expression. Francis and Philip Gilardi are Roman Catholics who own Freshway Foods and Freshway Logistics in Sidney, Ohio. In their lawsuit against the Department of Health and Human Services, ruled on by the U.S. Court of Appeals for the District of Columbia Circuit, the Gilardis argued that providing coverage for birth control (including Plan B) goes against their Roman Catholic beliefs, and thus violates their right to exercise their religion.

In their case, they cited the 1993 Federal Religious Freedom Restoration Act, which is like a giant 'conscience clause' that tries to prevent laws that could "burden a person's free exercise of their religion." (Whether the RFRA itself is constitutional or not has been a matter of debate.)

It's an example of one of many recent cases triggered by the birth control mandate in which business owners' religious beliefs are melding with the companies they run. Citizens United inadvertently paved the way for this slew of suits by making it possible for First Amendment rights to be applicable to corporations as well as people.

The primary opinion in the split-bench Gilardi case, written by Judge Janice Brown, ruled that the brothers don't have any RFRA rights because they run 'secular' companies ('religious' corporations can be exempt from the mandate, which is what the brothers were pushing for). However, Brown also ruled that the brothers had been "injured" by the birth control mandate separately from the companies.

“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.

With petitions for Supreme Court to review similar cases before the big guys in D.C., it's likely not so long until the court decides to review one — or more — of these cases. A ruling would effectively establish to what extent the HHS contraceptive mandate can be enforced by business owners who claim their religious beliefs should be imposed on the coverage of their female employees.

But then again, there could be a different motive surrounding these lawsuits altogether: Studies about whether insurance companies providing free contraceptive coverage saves them money in the long run (more contraceptive access should equal fewer pregnancies, which cost way more) are conflicted when it comes to the actual savings. A small study was conducted by an industry consulting firm, and found:

None of the 15 companies surveyed said it expected the mandate to result in savings, while 40 percent of the companies expected costs to increase through higher pharmacy expenditures. Another 20 percent said they thought it would be cost neutral.

Increased coverage is increased coverage, and increased coverage costs money.

"If we know contraceptives cost $600 a year, that $600 by all rights needs to be built into the premiums," said former Connecticare CEO Mickey Herbert.

However, the logistical cost of the mandate could cost insurance companies a lot, too.

Highmark, a Pennsylvania-based insurance company, told the PHCCC [Pennsylvania Health Care Cost Containment Council] that they would have to expend hundreds of hours, update computer systems and perform other administrative work to implement the mandate. The insurance company estimated it would spend $21.4 million annually, 10 percent of its projected overall financial impact, to comply.

Because that money has to be paid off somehow, insurance companies are likely to pass on the costs of implementing the law on to the employers who subscribe to their plans (and individuals' premiums).

But while we don't know how it's all going to work out until the mandate actually comes into effect, there could be some fear from small business owners such as the Gilardis that the increased costs of insurers complying with the mandate will up their costs as well — something they may or may not be able to afford.

This much is clear: because you can't sue on rising costs alone, it helps to have God on your side. And if God is in your corner, the New York Times would like to remind you, there's this to consider:

Allowing employees to make independent decisions to obtain contraceptives does not violate anyone’s religious freedom. If the Supreme Court takes up these cases, it should soundly reject the warped view that some employers can get out of complying with the new law, and in effect use their religious beliefs to discriminate against women.