Two Ohio companies were on the front line in a trail of legal challenges that resulted in this week’s U.S. Supreme Court decision overturning a mandate that required closely held companies to pay for contraceptives.
Companies in Sidney and Urbana, both owned by practicing Catholics, pursued suits against the U.S. Department of Health and Human Services, which was the lead defendant in a number of ultimately successful challenges to the mandate.
“I think it’s fair to say that Ohio had its fair share of challenges to this,” said Robert Muise, an attorney for the Ann Arbor, Mich.-based American Freedom Law Center. “And that was important. Having all this momentum, all these challenges, don’t think that was lost on these courts.”
Eight months ago, a federal appeals court in Washington, D.C., overturned a lower court ruling and held that the owners of a Sidney company, Freshway Foods and Freshway Logistics, should not be forced to provide contraceptive coverage for their employees. The company is owned by brothers, Frank and Phil Gilardi.
That November ruling in Gilardi v. U.S. Department of Health & Human Services was seen as setting the stage for Monday’s 5-4 decision.
The United States Court of Appeals for the District of Columbia Circuit found that the contraceptive mandate “substantially burdens the religious exercise of the Gilardis, does not further a compelling government interest, and is not the least restrictive means of furthering that interest,” an American Bar Association summary said.
Ruling vindicates company
Muise represented Johnson Welding, an Urbana company that sued Health and Human Services, as well as the federal Treasury and Labor departments.
Muise’s client was Lilli Johnson, president and principal owner of Johnson Welding, and who is a Catholic mother of seven children. Muise said Johnson’s company was exactly the kind of private-employer the Supreme Court had in mind.
“That’s the definition of a closely held family-run business,” Muise said.
Francis Manion, an attorney with the Washington, D.C.-based American Center for Law and Justice, filed an amicus brief in the Hobby Lobby case, relying in part on his arguments for Freshway, which he also represented.
Manion believes the earlier ruling by the Court of Appeals in Washington, as well as the amicus brief, played a role in the Supreme Court’s decision — and he believes the Gilardis understand that.
“They’re satisfied that the position they took way when has been vindicated by the highest court in the land,” Manion said.
Bosses’ religion ‘trumps’ employees
Judy Waxman, vice president for health and reproductive rights at the Washington, D.C.-based National Woman’s Law Center, said Monday’s ruling — and other suits against federal health regulations pursued by non-profits — leaves women in a precarious place.
“That leaves women with the situation where their bosses’ religion trumps their religion,” Waxman said. “We all believe in religious freedom. But in this case, it’s only the boss’ religion that matters.”
Birth control is a “very basic health service for women, and for many women, it’s not cheap,” Waxman said. For basic monthly oral pills, the cost is about $50 a month, she said. Long-acting birth control, such as an IUD, could be more than $1,000 up front, she said.
“While it benefits men and woman, the cost (for birth control) usually falls on the woman,” she said. And she said most women use contraception. According to the Guttmacher Institute, more than 99 percent of women between ages 15 and 44 who have been sexually active have used at least one contraceptive method.
What the Supreme Court’s decision means for the business landscape depends on whom you ask.
Brad Smith, a professor at the Capital University School of Law in Columbus, said much of the reaction to the court’s decision has been “overwrought.” He said the decision is statutory, not constitutional, meaning Congress can change the law on coverage— in theory, at least. And the impact is limited, in his view.
“Any employer has to have an authentic religious belief, and then they have to show the government could accommodate it in some other way, that would not infringe on that belief,” Smith said. “So you’re not going to have a lot of people making these arguments.”
Margery Murphy, president of Kettering’s Acadia Lead Management Services, started her B2B sales and marketing services business from her kitchen table in the late 1990s. She’s about to hire her tenth employee.
She sees the fundamental issue behind the Supreme Court’s decision as one of religious freedom.
“It really isn’t a matter of women’s rights, but it’s a matter of religious freedom for privately held businesses,” Murphy said. “Thinking about the country, the foundation this country was built on, was on religious freedom, and I do believe the court’s decision upheld that right for privately held businesses.”