Chalk Up A Victory Against The HHS Mandate UPDATED

The opinion for the plaintiffs, Francis and Philip Gilardi, reverses a denial of a prelimary injunction against the HHS mandate handed down by a district court. The decision comes by way of the U.S. Court of Appeals, District of Columbia Circuit. The plaintiffs are the owners of Freshway Foods.

Below is a snippet of the majority’s opinion.

The government cites several concerns to bolster its claim that the contraceptive mandate serves a compelling interest (or interests), but its recitation is sketchy and highly abstract. Perhaps the government thought it best to focus on justiciability, hoping its ipse dixit would be sufficient to survive strict scrutiny. After all, if no one has standing to object, the state avoids the searching inquiry into its means. Here, the articulated concerns range from “safeguarding the public health” to “protecting a woman’s compelling interest in autonomy” and promoting gender equality. But the government does little to demonstrate a nexus between this array of issues and the mandate.

For example, as a standalone principle, “safeguarding the public health” seems too broadly formulated to satisfy the compelling interest test. It has been used to justify all manner of government regulations in other contexts. SeeRoe v. Wade, 410 U.S. 113, 154 (1973) (abortion laws); Loxley v. Chesapeake Hosp. Auth., No. 97-2539, 1998 WL 827285, at *4 (4th Cir. Dec. 1, 1998) (competence of medical personnel); Dunagin v. City of Oxford, 718 F.2d 738, 747 (5th Cir. 1983) (en banc) (liquor advertisement rules). And here, the government relies on the broad sweep of that interest once more, citing Mead v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011), an individual-mandate case in which a district court found the public health interest sufficient. But the invocation of the interest in Mead seems empty, reflexive, and talismanic. The government cites Mead as if to say, “once a compelling interest, always a compelling interest.” It fails to recognize that “safeguarding the public health” is such a capacious formula that it requires close scrutiny of the asserted harm. SeeO Centro, 546 U.S. at 431. We cannot be satisfied with the government’s representation as to the compelling nature of the interest simply because other courts have reached that conclusion in the generality of cases. See Yoder, 406 U.S. at 221.

The nebulousness of the government’s interest, however, prevents us from engaging in the type of exacting scrutiny warranted here. What exactly is the government trying to ameliorate? Is it the integrity of “the health and insurance markets”? Surely, that cannot be the answer; the comprehensive sweep of the Affordable Care Act will remain intact with or without the mandate. Or is it a need to provide greater access to contraceptive care? If so, as we note below, the reasons underpinning that need are tenuous at best. If we are to assess whether an exemption for the Gilardis would pose an “impediment to [a governmental] objective[],” we must first be able to discern what that objective is. See id. at 221, 236. Simply reciting Mead is not enough.

The government’s invocation of a “woman’s compelling interest in autonomy” is even less robust. The wording is telling. It implies autonomy is not the state’s interest to assert. Nevertheless, the government, quoting Eisenstadt v. Baird, 405 U.S. 438 (1972), claims the mandate protects a woman’s ability to decide “whether to bear or beget a child.” See id. at 453.

Our difficulty in accepting the government’s rationale stems from looking at the Eisenstadt quote in its entirety: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matter so fundamentally affecting a person as the decision to bear or beget a child.” Id. (emphasis added). Regardless of what this observation means for us today,it is clear the government has failed to demonstrate how such a right—whether described as noninterference, privacy, or autonomy—can extend to the compelled subsidization of a woman’s procreative practices. Again, our searching examination is impossible unless the government describes its purposes with precision. As with Mead, simply invoking Eisenstadt is not enough.

Equally unconvincing is the government’s assertion that the mandate averts “negative health consequences for both the woman and the developing fetus.” From the outset, we note the science is debatable and may actually undermine the government’s cause. For the potential mother, as one amicus notes, the World Health Organization classifies certain oral contraceptives as carcinogens, marked by an increased risk for breast, cervical, and liver cancers. Br. of the Breast Cancer Prevention Institute, at 8–9. On the other hand, the contraceptives at issue have been approved by the Food and Drug Administration, supported by research touting their benefits. See Op. of Edwards, J., at 30. This tug-of-war gives us pause because the government has neither acknowledged nor resolved these contradictory claims.

Read the entire opinion, including the dissenting one. Also, have a look a Joe Carter’s post over at the Acton Institute’s blog. As it’s likely this question will be answered by SCOTUS, solid, prudent, opinions like this one are important.

Keep praying for our first, most cherished, liberty. Don’t give up the ship.

UPDATES

Deacon Scott Dodge: Is justice prevailing in the HHS mandate struggle? There’s hope.

Kathryn Jean Lopez interviews the attorney for the Gilardi’s.

Mark Shea: Court tells God King he can’t hold a gun to the head of a Catholic business.