On the first of this month, the D.C. Court of Appeals issued, sua sponte, an order granting the owners of two secular, for-profit corporations temporary reprieve to challenge the validity of the PPACA provision which requires coverage of preventive care – including FDA-approved contraceptive drugs, devices and related services – with no cost sharing (Gilardi v. HHS, D.C. Cir., No. 13-5069, 11/1/13). The owners of the two closely-held companies in Gilardi adhere to the Catholic faith and, based on their religious beliefs, oppose contraception, sterilization, and abortion.
Given PPACA’s apparent requirement to provide coverage in contravention to their religious beliefs or, in the alternative, pay potentially significant penalties for failing to provide compliant coverage as required under PPACA, the owners and their two companies filed suit in district court. Their suit alleged the mandated coverage of contraceptive drugs, devices and services violated their rights under the Religious Freedom Restoration Act (RFRA), the Free Exercise Clause and the Free Speech Clause of the U.S. Constitution, and the Administrative Procedure Act.
The plaintiffs moved for a preliminary injunction, but the district court denied their motion finding that (1) the companies could not “exercise” religion and, thus, the plaintiff corporations could not demonstrate a substantial burden on religious exercise under RFRA; and (2) the burden on the owner’ religious beliefs was indirect. The plaintiffs timely filed an interlocutory appeal and moved for an injunction pending appeal. After having initially denied their motion, the D.C. Court of Appeals revisited this