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Federal Court Rules PPACA Contraceptive Coverage Mandate Unconstitutional

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From the moment it was first proposed, the mandate issued by the Dept. of Health and Human Services that required all employer provided health insurance plans to include coverage for contraceptives at no additional cost to employees has been the subject a great deal of controversy. At the beginning, much of the criticism came from religious institutions like the Catholic Church that run seemingly non-religious operations such as schools and hospitals who objected that being required to cover contraceptives, some of which arguably could be considered abortifacients because of the manner in which they work, would require them to go against their religious beliefs in violation of their rights under both the First Amendment and a Federal Law known as the Religious Freedom Restoration Act. Quickly, though, those objections from employers who were also religious organizations started being echoed by private employers who claimed that complying with the mandate would also violate their religious beliefs.

It didn’t take long for lawsuits to be filed, of course, and over the course of the last year or so we’ve gotten a handful of Federal Court rulings on the issue, some of which have gone in favor of the employer and some of which have gone in favor of the government. The latest such decision came out this week from the highly influential D.C. Circuit Court of Appeals, where a three-judge panel issued a divided ruling striking down the mandate:

WASHINGTON — A federal court on Friday ruled that the health care law’s mandate that employers provide free coverage for contraception infringed on individual religious liberty.

The case, Gilardi v. the Department of Health and Human Services, was the latest setback for the Obama administration as it struggles to fix the crippled insurance enrollment website, HealthCare.gov. However, the fight over the mandate long preceded the law’s enactment and will most likely go to the Supreme Court.

The mandate “trammels the right of free exercise,” Judge Janice Rogers Brown wrote for a divided three-judge panel of the Court of Appeals for the District of Columbia Circuit.

The ruling was largely in line with most others around the country so far. Of nearly 40 challenges, only a handful of courts have upheld the government’s requirement that employer health plans provide free birth control, emergency contraception and sterilization.

Francis A. Gilardi Jr. and Philip M. Gilardi, brothers from Sidney, Ohio, should not have to provide contraception coverage to employees of the companies they own if it goes against their Catholic faith, the court ruled. However, those companies themselves, Freshway Foods and Freshway Logistics, do not have the right to challenge the mandate on religious grounds, the court said.

As a result, the ruling was only a “partial victory” for mandate opponents, according to a statement from the American Center for Law and Justice, which represented the Gilardis. The organization said it planned to ask the Supreme Court to settle the question.

“While this is a victory for the individual plaintiffs,” said Francis J. Manion, who argued the case, “the appeals court rejected a critical argument that the rights of the companies be protected as well.”

However, the question of companies’ rights is just a “procedural technicality,” said Eric Baxter, a senior counsel at the Becket Fund for Religious Liberty, which has represented other high-profile challengers to the ban, including the craft store chain Hobby Lobby. The Supreme Court is expected to decide before Thanksgiving whether to review that or other cases about the mandate, Mr. Baxter said.

Judge Harry T. Edwards wrote a dissent to the main part of the ruling, calling the Gilardis’ claim that a requirement on their companies imposed a burden on their freedom of religion “specious.”

Judge Edwards continued, “It has been well understood since the founding of our nation that legislative restrictions may trump religious exercise.”

SCOTUSBlog’s Lyle Denniston sums up the ruling this way:

Judge Janice Rogers Brown wrote the main opinion issued on Friday, which drew varying support from her two colleagues.  Her opinion first concluded that the Freshway corporations are not individually “persons” capable of exercising a religious belief, and therefore cannot pursue a claim that the mandate offends the firms’ faith.  In this context, she wrote, “person” means an individual human being, for purposes of both the Constitution and the federal Religious Freedom Restoration Act.

That part of her opinion had the support of Senior Judge Harry T. Edwards, but it drew a dissent from Senior Judge A. Raymond Randolph, who argued that the panel did not need to reach that issue.

The second part of Brown’s opinion concluded that, because the Freshway companies are run as closely held corporations, each with just two owners, the brothers may sue in that capacity to assert their own religious objections to the mandate.  That right-to-sue part of the ruling was unanimous, with the support of both Judges Edwards and Randolph.

While the panel did not rule finally that the brothers’ challenge ultimately will win, the panel split two to one in declaring temporarily that the brothers’ challenge is likely to win in in the end, so the government was currently barred from enforcing the mandate against the brothers.  On that point, Judge Randolph joined with Judge Brown for the majority, and Judge Edwards dissented.

Of particular interest is this portion of Judge Brown’s opinion on the religious liberty issues involved in the case:

The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of  contraceptive coverage in their companies’ employer provided plans, over whatever objections they may have. Such an endorsement—procured exclusively by regulatory ukase—is a “compel[led] affirmation of a repugnant belief.”  See id. That, standing alone, is a cognizable burden on free exercise. And the burden becomes substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong. If that is not ”substantial pressure on an adherent to modify his behavior and to violate his beliefs,” we fail to see how the standard could be met. See Thomas, 450 U.S. at 718.

In suggesting that no substantial burden lies with the Gilardis, the government invokes the principles undergirding the bargain for the corporate veil. True, it is an elementary principle of corporate law that “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). And as part of that fiction, shareholders forgo certain rights pertaining to the corporation. See Grote v. Sebelius, 708 F.3d 850, 858 (7th Cir. 2013) (Rovner, J., dissenting). But we cannot simply stop there. Shareholders make such a sacrifice because the corporation can generally exercise some analogue of the forgone right. As a corporation is “capable of making and executing contracts, possessing and owning real and personal property in its own name, suing and being sued,” a shareholder cannot expect to exercise the right to take these actions in his or her personal capacity. See 1 W. FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS § 25 (2006). This is no less true with constitutional rights. See Franks v. Rankin, Nos. 11AP-934, 11AP-962, 2012 WL 1531031, at *10 (Ohio Ct. App. May 1, 2012) (rejecting a shareholder’s due process claim brought on behalf of the corporation).

Mindful of these principles, consider the ramifications of the  government’s argument. It contends free exercise is an individual right. If the Gilardis had run their businesses as sole proprietorships, they would presumably have a viable RFRA claim under the government’s theory. Cf. Braunfeld, 366 U.S. at 601 (describing individual merchants who challenged a Sunday closing law under the Free Exercise Clause). But the government, relying on what is perhaps an incomplete understanding of corporate law, argues the Gilardis lose the ability to make such a claim by taking advantage of state incorporation law. And as a corollary to the government’s expansive theory, the party being regulated—the corporation—cannot make a free-exercise claim, as it is not an individual capable of exercising religion.  So, in the government’s view, there is no corporate analogue, and the individual right disappears into the ether.

This interpretation is perplexing and troubling. It is perplexing because we do not believe Congress intended important statutory rights to turn on the manner in which an individual operates his businesses. The government’s logic is also quite troubling because it would eventually reach First Amendment free-exercise cases. The same language, ”exercise” “of religion,” appears both in the Constitution and RFRA. Compare U.S. CONST. AMEND. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”), with 42 U.S.C. § 2000bb-1(a) (“Government shall not burden a person’s exercise of religion . . . .”). Thus, if the government is correct, the price of incorporation is not only the loss of RFRA’s statutory free-exercise right, but the constitutional one as well. And that would create a risk of an unconstitutional condition in future cases. See Perry v. -Sindermann, 408 U.S. 593, 597 (1972) (“[T]his Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of  reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on the basis that infringes on his constitutionally protected interests . . . .” (emphasis added)).

In other words, individuals don’t lose their Constitutional rights when they incorporate their business. This would seem to be an axiomatic proposition, actually, especially when what we’re talking about isn’t a large publicly traded corporation like General Electric or Google but smaller businesses and/or closely held corporations where all, or almost all, of the shares are owned by a small number of people who are, in  many cases family members or related in some way or another. The fact that they have chosen to incorporate or form an LLC, something which is largely done for purposes such as tax planning and shielding individual assets from corporate creditors, should not be a significant influence on the question of whether or not they are still able to exercise their Constitutional rights. As Judge Brown notes, if these brothers had decided to continue operating as a Sole Proprietorship, or even a General Partnership, then they would clearly still retain the Constitutional rights that they are seeking to exercise here. Given that, there’s no rational reason why they shouldn’t be able to exercise them under the current legal form in which they have chosen to operate their business.

As for the merits of this issue, I think the arguments of the employers have merit. Initially, I was skeptical about the arguments that even religious institutions were making regarding the religious liberty issues involved in this issue, but as the cases have made their way through the Federal Courts it’s become clear to me that there is far more merit to these arguments than I had initially thought. In many ways, the arguments are similar to those to a case out of Oregon that was handed down in February 2012. In that case, a Federal Court ruled that a pharmacist who had religious objections could not be forced to sell the so-called “morning after” pill. As National Review’s Ed Whelen recognized when that decision was handed down, the Judge’s reasoning in that case suggested strong that religious employers had a strong argument against the HHS mandate under both the First Amendment and the Religious Freedom Restoration Act. To make a very long argument short, the basic idea is that the government cannot impose a burden on religious faith without a compelling reason to do so and, as the Court goes on to find in the D.C. Circuit Court case here, the argument presented by the government simply doesn’t create a compelling enough interest to justify the abrogation of the Constitutional and statutory rights of employers.

This issue is inevitably headed to the Supreme Court. There are have already been several rulings on this issue at the Circuit Court of Appeals level, and there is a definite split of opinion on whether or not the contraceptive coverage mandate is constitutional. Several of those cases, including, potentially, this one, are at a point in the litigation where they could be considered by the Court during its current term with a decision being handed down by June of next year. So, we’re likely to get something resembling a final decision on this issue in the relatively near future.

Here’s the decision:

Giraldi v. HHS Opinion by dmataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. EddieInCA says:

    I’m not a lawyer, but I don’t understand how any corporation, under this ruling, can’t just claim that “anything they choose” violates their religious principles.

    Can any lawyers comment?

    Highly-rated. Helpful or Unhelpful: Thumb up 28 Thumb down 1

  2. Ron Beasley says:

    The largest hospital organization in the Portland area is Catholic. They have been offering birth control to their employees for years and over 30 years ago my wife had a tubal litigation at one of their hospitals. So why is this coming up now? Is it because it’s Obama’s package?

    Highly-rated. Helpful or Unhelpful: Thumb up 29 Thumb down 0

  3. Mikey says:

    @Ron Beasley:

    Is it because it’s Obama’s package?

    If Obama’s package is implicated, he’s got some explaining to do to Michelle…

    Highly-rated. Helpful or Unhelpful: Thumb up 23 Thumb down 0

  4. gVOR08 says:

    One of these days I’m going to found the First Church of Child Pornography just to show how silly this religious exemption stuff is. My own take is that yes, the Pharmacist shouldn’t be forced to provide contraception against his religious principles, but he should be forced to quit pretending to be a pharmacist.

    Highly-rated. Helpful or Unhelpful: Thumb up 46 Thumb down 1

  5. al-Ameda says:

    The War on Women continues …

    Highly-rated. Helpful or Unhelpful: Thumb up 26 Thumb down 1

  6. beth says:

    Seriously what is the difference between monies paid for insurance and monies paid for wages? Can my employer refuse to pay me if I’m going to use my salary to buy birth control pills? And are these idiots paying 100% of their employees’ insurance? If not, how do they get to decide what my portion pays for? This is ridiculous.

    Highly-rated. Helpful or Unhelpful: Thumb up 43 Thumb down 2

  7. Ron Beasley says:

    @Mikey: Poor choice of words!

    Like or Dislike: Thumb up 0 Thumb down 0

  8. Carol Duhart says:

    Isn’t this going to get complicated quickly? What if my boss belongs to a religion that only believes in alternative medicine, or the local healing shaman? What about those folks who believe in faith healing only? Or happens to be of the Duggar persuasion, doesn’t believe in vaccines? Do you have to go on Medicaid or Medicare in order to be sure you get unimpeded access to modern medicine?

    And what happens if a fanatic gets hold of a national chain? Do you have to forefeit a career in order to get family planning or some other needed medical care that the boss doesn’t approve of?

    Maybe what the ACLU will have to help us with next is the separation of church and corporation.

    Highly-rated. Helpful or Unhelpful: Thumb up 32 Thumb down 0

  9. Scott says:

    @Carol Duhart: The more “freedom” to corporations, the less for individuals. And there already is a national chain involved in this litigation. It called Hobby Lobby.

    Time to get rid of employer-based health insurance.

    BTW. If a pharmacist can refuse to sell contraceptives, can his/her employer fire him or is he protected?

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 0

  10. Carol Duhart says:

    @Scott: I doubt if he’s protected. For one thing, the pharmacist is subtituting his/her judgement for that of the patient’s physician. Such a person is making a moral judgement, not a medical one.

    Hormonal birth control is often used to regulate periods and other conditions. Viagra is used for certain heart conditions. Some people cannot survive a pregnancy and need birth control. And when does it end? Should a patient have to wonder if the medication they are taking meets the unknown moral standards of a pharmacist they don’t know, and who has no idea how urgently the medication may be needed, or the underlying conditions that it’s also treating?

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  11. ernieyeball says:

    @Carol Duhart: Maybe what the ACLU will have to help us with next is the separation of church and corporation.

    First they will have to separate the church and the mob. See Godfather III.

    Like or Dislike: Thumb up 6 Thumb down 0

  12. Ron Beasley says:

    It is really embarrassing to live in a country where so many make their moral decisions based on tribal law that is over 2000 years old. The fact that they cheery pick it makes it even worse. How many of these people who point to Leviticus to justify their beliefs eat pork and shellfish. Most I would guess.

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  13. Dave D says:

    It’s truly a shame we have to stand for this under Obamacare. If we had a single payer, every woman would have contraception paid for. Also we could quit having corporations pretend that insurance is anything more than payment for services rendered. There is a reason that even though efficiency has increased wages have not; and it is the elephant in the room of health insurance. If they win this then any payment to an employee may need approval of the parent company to be spent lest it violate their 1St amendment rights. How is this any different than paying people with company money they can only spend at the company store. I thought my right to spend my payments for services (health insurance included since they aren’t separated,) trumped the company’s right to tell me what I can buy. I guess since the Supreme Court has ruled that not only are corporations people, but people with money have more free speech rights than ones who don’t. Us lowly workers will have to again kowtow to the will of big business, as they gain more rights, while private citizens lose them.

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  14. Dave D says:

    Someday I hope that I, as a private citizen, will have the same rights as corporations.

    Highly-rated. Helpful or Unhelpful: Thumb up 41 Thumb down 0

  15. Jeremy R says:

    Hopefully this idiotic ruling helps light a fire under Senate Democrats to use all means in their power to fill the long standing DC Court of Appeals vacancies that Senate Republicans have strategically keeping empty to tilt the court rightward:

    http://www.motherjones.com/mojo/2013/10/house-republicans-accuse-obama-court-packing

    Authorized for 11 judgeships, the court presently has only eight judges. Republicans claim that the court is “evenly divided” among judges appointed by Republicans and Democrats. But the court also has six semi-retired senior judges who still hear cases. When they’re included, Republicans have a 9-5 majority. Many of those GOP nominees are also hardcore conservative ideologues. Among them: Janice Rogers Brown, who almost didn’t get confirmed during the George W. Bush administration because of her extreme libertarian views. An Ayn Rand fan, Brown considered Supreme Court decisions upholding minimum-wage laws “the triumph of our socialist revolution.”

    The Republican majority on this court has been able to advance aspects of the GOP’s anti-regulatory agenda that the party has failed to accomplish legislatively. Last year, for instance, the DC Circuit struck down a set of environmental rules 20 years in the making that would have held states responsible for pollution that leaked across their borders.

    http://thehill.com/blogs/floor-action/senate/188851-republicans-block-obama%E2%80%99s-dc-circuit-nominee

    Senate Republicans on Thursday blocked one of President Obama’s nominees to a powerful circuit court, enraging Democrats who threatened to use the “nuclear option” to advance her.

    The Senate voted 55-38 against ending debate on the nomination of Patricia Millett to be a judge on the U.S. Court of Appeals for the District of Columbia. Democrats needed at least 60 votes to end the Republican filibuster.

    Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) warned that Millet’s rejection could prompt Democrats to use the “nuclear option” to change Senate rules and ensure nominees can’t be blocked.

    Senate Minority Leader Mitch McConnell (R-Ky.) accused Obama of trying to “pack the court” with judges that will approve of his “big government” agenda.

    “They’ve admitted they want to control the court to advance the president’s agenda,” McConnell said ahead of the vote.

    Many Republicans have said they don’t think the panel needs additional judges to handle the current case load.

    Sens. Lamar Alexander (R-Tenn.) and Chuck Grassley (R-Iowa) have advocated reallocating two of the three judicial vacancies on the D.C. Appellate Court to other courts that have judicial emergencies because of heavier backlogs of cases.

    “I will not vote to end debate now because I think such a vote would be premature,” Alexander said. “Before the Senate has an up-or-down vote on the three judges, there’s something else we ought to do first. We should first consider the bipartisan proposal that was made 10 years ago to have the right number of judges on this federal appellate court.”

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  16. OzarkHillbilly says:

    @Scott:

    Time to get rid of employer-based health insurance.

    They will just demand a religious exemption from paying taxes then. Of course, THAT one will be granted. Unlike the one for having your taxes pay for wars.

    Like or Dislike: Thumb up 10 Thumb down 0

  17. wr says:

    @Carol Duhart: “Such a person is making a moral judgement, not a medical one.”

    Yes, but in the Republican version of the constitution — and, according to Doug, the libertarian one — a medical judgment lacks the validity of a moral one, at least against the kind of slut who actually has sex.

    I’d be curious to see how Doug would respond if these Bush-appointed judges ruled that religious fundamentalists had the constitutional right to constrain the freedom of privileged white males.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 0

  18. OzarkHillbilly says:

    @Dave D: Never happen. You can’t afford those kinds of rights.

    Like or Dislike: Thumb up 9 Thumb down 0

  19. SKI says:

    Insanity. Taken no further, this ruling would also allow closely held employers to discriminate on the basis of sex given religious traditions that frown on women working outside the home.

    Politics over law.

    Like or Dislike: Thumb up 14 Thumb down 1

  20. James Pearce says:

    Her opinion first concluded that the Freshway corporations are not individually “persons” capable of exercising a religious belief, and therefore cannot pursue a claim that the mandate offends the firms’ faith.

    That’s a relief. If corporations ever become capable of exercising a religious belief, religious freedom in this country is essentially dead. Anyone who takes a job would be subject to losing their religious rights in favor of bowing to their employer’s.

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 0

  21. humanoid.panda says:

    The complete and utter identity of opinion between libertarians and religious zealots in this country is really a thing to behold. Motivated thinking is a mighty mistress. Also, I am looking forward to the moment when Doug, a supporter of gay marriage,has to write a defense of decisions gutting ENDA in the name of the religious freedom. Priorities, people, priorities!

    Like or Dislike: Thumb up 11 Thumb down 0

  22. An Interested Party says:

    Talk about elections having consequences! When we have loons like Janice Rogers Brown ruling on laws, you know we’re in trouble…Beth nails it perfectly…health insurance provided by employers is compensation, just like paying a wage…employers do not have the right to tell their employees how to use their earned compensation…perhaps we need to bring back company towns with company stores so that employees have to buy exactly what their employers want them to buy…

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 0

  23. Latino_in_Boston says:

    This is just beyond comprehension to me. How can my religious beliefs dictate what your insurance may or may not cover?

    Here are just some, not at all imaginary beliefs, that could be used in future lawsuits.

    Jehova’s Witnesses believe that blood transfusions are a great sin. So if they provided me with insurance, they could sue under these rulings to prevent my insurance from covering that, couldn’t they?

    Mormons believe drinking caffeine and alcohol is also a sin. Presumably they could also sue to prevent my insurance from covering any medicines with caffeine in them. Or even better, they could sue to prevent insurance from covering diseases that resulted from the consumption of alcohol or coffee.

    What about Scientology? They think psychiatry is evil. So maybe they can sue to prevent their insurance from covering psychiatric treatments.

    And most religions consider adultery to be a sin. So maybe they could also sue to prevent insurance from covering anything that might result such as sexual diseases or pregnancy. And if Doug thinks that all of these examples are ridiculous. I would like to know how these would not have merit, but the birth control lawsuits do.

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  24. al-Ameda says:

    This is a perverse legal opinion.

    The people who who object to legal abortion are the same people who object to an insurance mandate that includes women’s contraception (birth control) which of course, prevents unwanted pregnancies, and by inference, reduces the number of abortions. But, beyond that, the fact that an insurance mandate exists does NOT in any manner require a woman to obtain contraception if she does not want contraception.

    We are an extremely dumbed down country.

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  25. Gromitt Gunn says:

    This ruling is the best argument for single-payer health insurance we’ve seen yet.

    Highly-rated. Helpful or Unhelpful: Thumb up 15 Thumb down 0

  26. Latino_in_Boston says:

    @al-Ameda:

    Exactly, al-Ameda. These people are against women terminating their pregnancies, but are just fine with them getting pregnant in the first place. Even better, they’re probably against the government providing help in the form of food stamps or other aid if the woman is poor.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  27. Gustopher says:

    What exactly is meant by a “closely held corporation”?

    Does it still protect the shareholders from personal liability in cases of corporate wrongdoing or bankruptcy? Because that would seem like the spot where the corporation is no longer simply an extension of the owners, and where the owners’ deeply held religious convictions can go f.ck themselves.

    Like or Dislike: Thumb up 11 Thumb down 0

  28. Tony W says:

    @Gromitt Gunn: Agreed – which is why I expect a milquetoast defense against the ruling from this administration.

    Like or Dislike: Thumb up 4 Thumb down 0

  29. Moosebreath says:

    Hmm — I thought that corporations were not permitted to have any moral beliefs except how to increase their shareholders wealth. We’ve been told that many times by Libertarians when justifying how corporations cannot be forced to take moral actions, but can only do what maximizes shareholder value (I recall especially the gyrations McMegan did to justify why corporations intentionally defaulting on loans and delivering the property secured by the loan to get out of bad situations is wholly good, but individuals doing the same was EVIL!!!).

    Now it turns out, when convenient for the owners of the corporations, they can actually have moral values (which of course are conveniently identical to those of their largest shareholders).

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 0

  30. Ron Beasley says:

    @Scott: I can’t speak for the rest of the country but in Oregon Pharmacists are licensed by the state and he/she would lose their license which would result in termination.

    Like or Dislike: Thumb up 8 Thumb down 0

  31. bill says:

    @al-Ameda:

    Judge Janice Rogers Brown wrote the main opinion issued on Friday

    must be a self loathing one?

    Like or Dislike: Thumb up 5 Thumb down 1

  32. Anonne says:

    @Gustopher:

    Closely held = not publicly traded.

    Like or Dislike: Thumb up 2 Thumb down 0

  33. MarkedMan says:

    To most of us this really boils down to what kind of business practices are acceptable? Can,say, a public business refuse to sell houses to blacks, Italians and Jews and compell the owners to enforce the same provision when they sell? In the 1930’s (?) when Kodak financed Kodak Park, it was written into the contracts. But by the 1980’s, when my friend of Italian descent bought his house there it was just considered a historical oddity. So, over time we as a society decide what personal beliefs can be forced on others by a public company.

    Of course to a hard core Libertarian that original Kodak clause is acceptable, albeit perhaps morally repugnant. It boils down to this: how far can a society go to enforce a level playing field? To the libertarian I suspect the answer is ‘not very far’. But as a practical matter this is absurd. A modern society must bend or break when the playing field becomes too skewed. Bending means adjusting the rules under which a society operates to insure that all benefits and freedoms go to fewer and fewer people. Breaking, well breaking means revolution, with those few elite ending up against the wall. I’ve long suspected that Roosevelt’s success with the New Deal had more to do with Morgans and the Rockerfellers watching their peers in Russia getting dumped in mass graves as it did to some new found sense of social justice.

    Like or Dislike: Thumb up 13 Thumb down 0

  34. mike shupp says:

    I remember in the Good Old Days of 1955 or so, wealthy women seeking a divorce would fly or take a train into Nevada, camp out in a motel for a couple of months to establish residence, and then get a quicky marital dissolution. Unwealthy women, of course, just had to suck it up and stay married (or kick their husband out the door and resign themselves to being single-but-married for the rest of their lives).

    Abortion seems headed for similar status: Women who can afford it will fly off to Canada or the Caribbean or Europe and end their pregnancies. Everybody else … God doesn’t want American women to get abortions or even many contraceptives, and By God! That’s the way it’s gonna be! Because that’s what our Christian Founding Fathers wrote into the Constitution, and if folks here can’t see the words, that’s all right, someday five Supreme Court Justices surely will.

    It strikes me advocates of abortion and easily obtained contraceptives ought to start from scratch in a few more years — laying plans for passing laws in the different states, starting up petition drives, organizing demos, looking for judges who might give favorable rulings, etc. Who knows, by the end of the century, women in the USA may have reproductive rights almost as extensive as those in Bolivia!

    Like or Dislike: Thumb up 12 Thumb down 0

  35. Dave D says:

    @Latino_in_Boston: Even worse look at Christian Scientists, they disagree with any medical treatment whatsoever. In their belief system all disease is cause by the devil and you need to merely pray to heal the sick. So to them they should not have to cover any health insurance because seeing a doctor is clearly an affront to their God. This ruling can create a system where insurance is no longer treated as compensation, the zealots win a minor yet catastrophic victory and corporations gain even more rights than citizens since they have money and apparently now they also have religious convictions.

    Like or Dislike: Thumb up 9 Thumb down 0

  36. Ron Beasley says:

    @Latino_in_Boston: @Dave D: Really good examples of where this could possibly lead. Just another example of why we need to get rid of employer health insurance.

    Like or Dislike: Thumb up 6 Thumb down 0

  37. al-Ameda says:

    @bill:

    @al-Ameda:
    Judge Janice Rogers Brown wrote the main opinion issued on Friday

    must be a self loathing one?

    “One” what? One out-to-lunch judge? Why yes, that is within the realm of possibility.

    Like or Dislike: Thumb up 3 Thumb down 0

  38. Latino_in_Boston says:

    @Dave D:

    Excellent point, Dave. Is the Christian Science Monitor still controlled by them? If so, I guess it’d be better not to work for them if this goes through.

    Like or Dislike: Thumb up 2 Thumb down 0

  39. stonetools says:

    This is a dead horse, but for any voter who questioned the difference between Bush and Gore, Ms. Owens and Ms. Rogers Brown is a complete response : two women who frankly shouldn’t be judges at all, but who are currently making law and re-making the Constitution for the rest of us. Those liberals who want to sit out a Clinton campaign for 2016 should be beaten with a stick with their names on it till they come to their senses, because the next Republican President is going to nominate one or both of them to the Supreme Court. I’ll out source why these women are so terrible to Emily Bazelon, and highlight why Rogers Brown’s decision is so bad:

    On Friday, morning, it was the turn of another extremely conservative woman chosen for the bench by Bush, Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit. Brown handed down a similarly dramatic decision holding that the provision in the Affordable Care Act that requires companies to provide health care coverage that includes contraception “trammels” the religious freedom of an Ohio-based food service company, Freshway Foods, through its two owners, who claimed that the mandate violated its Catholic faith. This is a company we are talking about, not its owners. But following headlong in the wake of the Supreme Court’s wrongheaded finding in Citizens United that corporations are people, too, Brown found that the mandate violates the company’s strongly held religious convictions. To make the company provide a health care plan—from an outside insurer—that offers contraceptive coverage is a “compel[led] affirmation of a repugnant belief,” Brown wrote. The argument that a for-profit secular company has a religious conscience—separate and apart from the religious beliefs of its owners—is a notion that vaults the concept of personhood from the silly (“corporations are people, my friend”) to the sublime

    Amen. Let us pray that Judge Rogers Brown never becomes Justice Rogers Brown.

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  40. fred says:

    Similar to the War on Drugs, which fell on Blacks, the GOP now has a war on women. All men who love their daughters and mothers and wives will join women in voting out GOP reps at all levels of govt. WE THE PEOPLE are the US govt. It’s time to let politicians know that.

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  41. Bob @ Youngstown says:

    @beth:

    Seriously what is the difference between monies paid for insurance and monies paid for wages?

    The health insurance program at my employer was always listed as part of the compensation package

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  42. Monala says:

    @Latino_in_Boston: 24 hours later, and Doug still hasn’t responded to your question.

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  43. An Interested Party says:

    24 hours later, and Doug still hasn’t responded to your question.

    That’s because being a libertarian means never having to admit that your ideology is full of $hit…

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  44. Tyrell says:

    “Requires employer coverage to include contraceptives”: come on, how much does a pack of condoms cost?
    I’ll catch the rest later, got to go – “Hee Haw ” is on.

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  45. wr says:

    @Tyrell: ““Requires employer coverage to include contraceptives”: come on, how much does a pack of condoms cost?”

    Right. We might add: Requires employer coverage to include pain medication. Come on, how much does a bottle of aspirin cost?

    Hint to Tyrell: It’s not 1910 anymore.

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  46. Wish You were here. says:

    The sad part is these comments. The people don’t support others Constitutional right to exercise their religion. The mantra is “The war on women” which is so lame it’s nauseating.

    Every employer has policies that employees must adhere to.
    There is a choice to not even apply for a job if you have an issue with their policy. Don’t get a job at those places (which happen to be great places to work). But if the government mandates that they do things against their beliefs they are the ones left without a choice.

    It’s sad because most people don’t know what it’s like to pour themselves into a business of their own, just to have others tell you what you can and can’t do with it. Ultimately, what you get is a fair-weather controlling partner with a take of 30-46% of profit without putting so much as a dime back if there’s loss. No unemployment protections. No disability. No protection for the people that work hard to provide the jobs that the country needs to survive.

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  47. al-Ameda says:

    @Wish You were here.:

    The mantra is “The war on women” which is so lame it’s nauseating.

    Apparently you’re oblivious to the fact that the Republican Party is not interested in letting women control their own reproductive health choices. I’m sorry for your loss.

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  48. James Pearce says:

    @Wish You were here.:

    The people don’t support others Constitutional right to exercise their religion.

    Sure we do. We just don’t support the right of religious people to compel others to follow their beliefs. That’s not “religious freedom.” Indeed, it’s the opposite of religious freedom.

    Every employer has policies that employees must adhere to.
    There is a choice to not even apply for a job if you have an issue with their policy.

    Well, that’s somewhat true, but a bit oversimplified. Contrary to the view that owning a company gives you dictator powers, there are established limits as to what policies companies can set. For one, they must be legal. That’s why the Girardis are fighting this in court; to make their “no contraceptives” policy legal, which prior to bringing it to court, it wasn’t.

    In this regard, companies are like everyone else. They get to do what they want to do….within a set of established parameters. So I guess we should chuck the whole “They own the company” schtick or at least acknowledge with it that employers already operate within limits.

    It’s sad because most people don’t know what it’s like to pour themselves into a business of their own, just to have others tell you what you can and can’t do with it.

    You’re right. Most people know what it’s like to pour themselves into a business they don’t own, and they already accept that there’s another person –their boss– who gets to tell them what they can and can’t do.

    The only profit they see is a paycheck and health insurance. So let’s carve into that and then bemoan how hard it is out there for a boss.

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  49. Moosebreath says:

    @Wish You were here.:

    “Every employer has policies that employees must adhere to.
    There is a choice to not even apply for a job if you have an issue with their policy. Don’t get a job at those places (which happen to be great places to work). But if the government mandates that they do things against their beliefs they are the ones left without a choice.”

    Let’s delve into this some more. Let’s say an employer imposed a policy that employees could not engage in pre-marital sex. Or that they could not drink coffee, whether or not at the office. Or they could not take doctor-prescribed medication. (All of these are beliefs held by various religions in the US). Would you support the employer’s policies in these instances? If not, why not?

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  50. grumpy realist says:

    @Anonne: Not quite. “Closely held” not only means privately held, but also privately held among a small group of individuals. Definition of “small”? well, that depends on case law….

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  51. grumpy realist says:

    May all those who think this decision is perfectly dandy find themselves employed at a closely-held corporation run by people who have a religious belief system mandating a combination of veganism, no alcohol, and no caffeine. Oh, and enemas 5 times a day.

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  52. mantis says:

    The next logical step here is for corporations (also known as “devout religious people” by the courts) to be granted the power to dictate what their employees can and cannot spend the rest of their compensation on. After all, our rights are not quite as equal to those of the corporate “people” for which we work.

    And being people, corporations can go to prison for their crimes, right? Oh, I forgot. They get all the benefits of being people, but none of the drawbacks. I guess its all that praying they do that makes corporations so lucky.

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  53. rudderpedals says:

    The bare fact that this opinion exists demonstrates the entanglement risk. It should urge a rethink in an environment that weighs the establishment clause problems against this attempt to bootstrap protection for hateful but religious beliefs into the stream of commerce. An en banc rehearing leading to a far more tempered opinion is sorely needed.

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  54. John D'Geek says:

    @EddieInCA:

    I’m not a lawyer, but I don’t understand how any corporation, under this ruling, can’t just claim that “anything they choose” violates their religious principles.

    and

    @gVOR08:

    One of these days I’m going to found the First Church of Child Pornography just to show how silly this religious exemption stuff is.

    The Compelling Interest Test is what prevents this abuse, otherwise the “my church does not allow me to pay taxes” denominations would be very popular. Short version: “Can the government do what needs to be done without budening religious expression?”

    It is that question that is the most damning to the Liberal position in this matter.

    The Hawaii Plan, which you may recall President Obama actually supported over what we have now, would allow you to have contraception coverage (if you wish it) without your employer (directly) paying for it. The fact that Liberals refuse to allow this shows that this is really more about being anti-religion than about freedom or women’s health.

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  55. John D'Geek says:

    FYI:

    @Latino_in_Boston:

    Mormons believe drinking caffeine and alcohol is also a sin. Presumably they could also sue to prevent my insurance from covering any medicines with caffeine in them.

    Not quite. (I was once Mormon). This refers to a health code; Mormon Theology won’t question prescribed or necessary medication or treatments as such.

    Nyqil okay; “Gotta have a beer!” … not so much.

    Trivia: The heads of the Mormon Church have physicians in their ranks, including one prominent heart surgeon.

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  56. mantis says:

    @John D’Geek:

    The fact that Liberals refuse to allow this shows that this is really more about being anti-religion than about freedom or women’s health.

    Who is refusing to allow this and how?

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  57. John D'Geek says:

    @mantis: As I recall, the reason it wasn’t put in as operative regs is that it was specifically prohibited by the ACA (group of Liberals of the first part). Also read comments in this thread and similar threads in the past (group of Liberals of the second part).

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  58. mantis says:

    @John D’Geek:

    As I recall, the reason it wasn’t put in as operative regs is that it was specifically prohibited by the ACA (group of Liberals of the first part).

    Are you talking about the PPACA or some organization? If the former, your comment makes no sense. A bill is not a group of people, and the act could be modified, which is what was being discussed when the Hawaii compromise came up.

    To be sure, some reproductive rights groups disliked the Hawaii compromise because it would force people to jump through hoops for basic care, but the reason it got no traction was The Catholics and other religious groups opposed it, and they were the ones that needed convincing for it to go anywhere. They didn’t want anyone employed by companies run by their followers to have access to contraception through employers provided insurance, full stop. The compromise still provided patients with access, and they can’t stand for that.

    . Also read comments in this thread and similar threads in the past (group of Liberals of the second part).

    I don’t think commenters here have the power to stop a legislative act, but please point out where they opposed the Hawaii compromise on this thread or anywhere else on OTB.

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