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Scott Gaylord challenges health care mandate in amicus briefs for federal courts

Elon Law Professor Scott Gaylord has authored amicus briefs for cases in the Sixth, Seventh, and Tenth Circuits of the United States Court of Appeals challenging the requirement under the Patient Protection and Affordable Care Act (ACA) that most employers must provide employees with health insurance that covers all Food and Drug Administration approved contraceptive methods and sterilization procedures.

In his submissions to the federal courts, including a pending brief for a case before the Third Circuit, Gaylord analyzes whether for-profit corporations can exercise religion under the First Amendment’s free exercise clause and the Religious Freedom Restoration Act (RFRA). In his amicus brief to the U.S. Court of Appeals for the Seventh Circuit, regarding Grote Industries, LLC, et al. v. Kathleen Sebelius, in her official capacity as Secretary of the United States Department of Health and Human Services, et al., Gaylord reviews several U.S. Supreme Court decisions to make three primary arguments:

1) “Because, as the Supreme Court previously acknowledged, non-profit corporations can exercise religion, the free exercise clause is not a ‘purely personal’ right, which applies ‘only to natural individuals.’”

2) “The First Amendment protects speech and religious activity generally and is not limited to corporations that are in the ‘speech buiness’ or the ‘religious business,’ respectively.”

3) “Restricting the free exercise clause to pervasively religious organizations impermissibly discriminates against for-profit corporations that promote religious views and those business owners who seek to live their faiths through their businesses.”

Gaylord concludes this amicus brief with the following argument:

“If a corporation, such as Grote, is owned and operated by individuals who are deeply committed to a particular faith, then it may be unsurprising that the company will reflect the religious principles of its owners. As the complaint demonstrates, Grote seeks to implement Catholic social teaching regarding corporate responsibility, attempting to promote the well-being of its employees in a financial and moral sense. According to the company, the ACA requires it to provide insurance coverage for medical services, such as abortifacients, contraceptives, and sterilization, that violate the Catholic values that underscore the company’s operations. As such, the ACA infringes on the religious activities of the corporation and requires the company to take specific actions that are inconsistent with its ethical guidelines. For the reasons discussed above, Grote can invoke the free exercise clause to protect its religious activities, and the courts are left to determine whether that claim is meritorious under the appropriate standard.”

Gaylord’s amicus brief to the Seventh Circuit, regarding Grote v. Sebelius, is available here.

Gaylord’s article, “For-Profit Corporations, Free Exercise, and the HHS Mandate,” which elaborates on arguments advanced in his amicus briefs to federal courts, is available here.

More information about Elon Law Professor Scott Gaylord is available here.


Philip Craft,
3/26/2013 10:55 AM