Stage is Set for Supreme Court Review of HHS Mandate Challenge

On May 20th, a sharply divided U.S. Court of Appeals for the D.C. Circuit denied Priests for Life’s petition to rehear en banc (full court) its legal challenge to the HHS mandate.

Three circuit judges dissented from this decision.

The American Freedom Law Center (AFLC) is representing Priests for Life in this important religious freedom case.

Circuit Judge Brown, joined by Circuit Judge Henderson, wrote a powerful dissent from the denial of rehearing en banc, excerpts of which appear below:

In declaring that—contrary to Catholic Plaintiffs’ contentions—it would be consistent with the teaching of the Catholic Church for Plaintiffs to comply with the regulations the panel exceeded both the “judicial function and [the] judicial competence.”

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Likewise, where civil authorities may conclude an individual has “wash[ed his] hands of any involvement,” Slip Op. at 26, adherents of a faith may examine the same situation and, in their religious judgment, reach the opposite conclusion.  Pontius Pilate, too, washed his hands, but perhaps he perceived the stain of complicity remained.  See Matthew 27:24.

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Under the panel’s analysis, it seems no claim of substantial burden may prevail where the religious significance of conduct under scripture as interpreted by a faith tradition differs from the legal significance of that conduct under the laws of the United States as interpreted by federal judges.  But RFRA would be an exceedingly shallow—perhaps nonexistent—protection of religious exercise if adherents were only permitted to give the same meaning to their actions or inactions as does the secular law.

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Priests for Life is an organization that exists solely for the purpose of countering the benign narrative that contraception and abortion are beneficial to women.  The other Plaintiffs exist, at least in part, to engender a counter-cultural narrative that “life begins at the moment of conception . . . and that certain ‘preventative’ services that interfere with conception or terminate a pregnancy are immoral.”  Pls. Br. at 15.  Those who accept employment with these organizations and students who enroll at these schools do so with full awareness of their mediating stance.  Nevertheless, though the government acknowledges that a primary goal of such organizations is to oppose the government’s mission of increasing access to and use of contraception, it places them outside its grudging religious exemption and offers only one real choice—they can renounce their religious scruples overtly or in practical effect.  If the government coopts their contractors and administrative structures to dispense advice, drugs, and services that contravene their religious views, in effect, it has written contraceptive care, including access to abortifacients, into Plaintiffs’ employment contracts and student health care agreements.  Commandeering is not accommodation, and, in this context, “seamlessness” is just shorthand for surrender.

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The French have another saying, mocking the Bourbon restoration: ils n’ont rien appris, ni rien oublié.  Learning nothing and forgetting nothing.  The modern maxim does the Bourbon monarchs one better: learning nothing and forgetting everything.  Alas, preserving the fragile ark of our constitutionalism requires us to remember that the first principle of liberty is freedom from gratuitous coercion.  We respectfully dissent.

Circuit Judge Kavanaugh wrote a separate dissent, concluding that Priests for Life should prevail in its challenge under the Religious Freedom Restoration Act (RFRA).

The American Freedom Law Center will be seeking Supreme Court review.

AFLC Co-Founder & Senior Counsel Robert J. Muise commented:

“While it was certainly a long shot that the D.C. Circuit would grant review of our petition for full court review in light of the fact that this is the court that Harry Reid packed with Obama judges via the ‘nuclear option,’ the fact that we have three dissenting judges will greatly assist our efforts to get the Supreme Court to review this very important religious freedom case.”