By Katherine Robertson

On Nov. 1, a three-judge panel of the D.C. Circuit Court of Appeals decided Gilardi v. HHS ruling against the controversial “birth control mandate” instituted under Obamacare. People of faith from around the nation have waited for an answer on this question, with nearly 75 similar cases pending in federal courts. While this decision is a major victory for religious liberty, the issue will likely face another round at the U.S. Supreme Court.

Under the Affordable Care Act, employer-paid health insurance plans (for companies with more than 50 workers) must offer free “preventive care” which subsequent guidelines define as “all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity, as prescribed by a health care provider.”

The plaintiffs in the case were brothers Francis and Philip Gilardi, owners of Freshway Foods and Freshway Logistics, who have nearly 400 employees. The brothers filed suit on the basis that Obamacare’s contraceptive mandate obstructs their right of free exercise as protected by the Constitution and the Religious Freedom Restoration Act in that the mandate conflicts with their Catholic faith.

The Court was asked to determine whether or not the birth control mandate could violate the free-exercise rights of the business owners, given that the company, not the individual brothers, was required to provide the employee benefits. In a 2-1 decision, the Court held that the mandate can and does impede the religious liberties of the business owners when the business is closely held.

The opinion, authored by Alabama native Judge Janice Rogers Brown, offered a scathing response to the “troubling” and “sketchy” arguments set forth by the U.S. Justice Department. The government’s key claim was that the religious beliefs of the Gilardi brothers were not substantially burdened because religious freedom is an individual right and cannot be enjoyed by corporations. That is, the government believes that the business owners forfeited their First Amendment and statutory rights of free exercise by opting for incorporation. In response, the Court found that “approving and endorsing the inclusion of contraceptive coverage in their employer-provided plans” is a “cognizable burden on free exercise” and a substantial one, given the looming $14 million penalty faced by businesses that do not follow the law.

The Justice Department furthered argued that providing contraception should be considered by the Court as a “compelling government interest” and should survive the Court’s strict scrutiny into whether the government’s interference with religious liberty was warranted. The government reasoned that the mandate was necessary to “safeguard the public health,” “avert negative consequences for the woman and developing fetus,” and protect “a woman’s compelling interest in autonomy.”

Pronouncing the Justice Department’s arguments “nebulous” and “unconvincing,” Judge Brown concluded, “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.”

There are three critical takeaways from this decision. First, the Department of Justice has demonstrated once again that in its “representation” of the citizens of the United States, it is willing to make radical arguments in the defense of policies that trample the rights protected by the Constitution. Second, the Supreme Court’s June decision was not the end of constitutional scrutiny of Obamacare.

Third, the importance of the makeup of the D.C. Circuit Court cannot be overlooked. While the president has the constitutional authority to make nominations to the D.C. Circuit, the Constitution also grants the Senate the power to oppose his nominations as a safeguard “to protect against the degeneration of the Republic’s original ideals and thus ensure the Republic’s stability.”

Katherine Robertson serves as senior policy counsel for the Alabama Policy Institute.