Rule of Law

Split Decision in D.C. Circuit Gives Owners Right to Challenge Contraceptive Mandate

By Mary Anne Pazanowski

…David H. Gans, director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center, Washington, told Bloomberg BNA Nov. 4 that it is ‘‘likely’’ the Supreme Court will grant review of the issues involved in the case, given the ‘‘deep split’’ in the circuit courts. He added, though, that while this appears to be the first case to have produced this particular split—corporations can’t exercise religious rights, but their individual owners can challenge the mandate as violative of their own rights—it probably isn’t the best vehicle for Supreme Court review….

…Gans called the D.C. Circuit’s decision that corporate owners may challenge the mandate as violative of their own rights ‘‘disappointing.’’ The court “missed” the point that, when owners are acting on a corporation’s behalf, they are acting for the corporation and not for themselves. Also, he said, the Supreme Court ‘‘has said time-and-time again’’ that corporate owners may not impose their religious beliefs on their employees.  “What would employees lose’’ if courts said corporations had the right to avoid federal employment regulations based on their owners’ moral codes, Gans asked. Such a result wouldn’t be ‘‘consistent with principles of religious freedom,’’ he said….