Birth Control Foes Land Significant Blow on Obama’s ‘Contraception Mandate’

Republican appointees on the D.C. Circuit Court decide that the religious beliefs of a company's owners grant it an exemption from a key part of the Affordable Care Act.

11.01.13 8:30 PM ET

Since its passage, the Affordable Care Act has been subject to a wide number of legal challenges, from arguments against its constitutionality—settled last year—to attacks on individual aspects of the law. The contraception mandate, in particular, has been the focus of several efforts, and this morning, opponents of birth control won a major victory.

To wit, D.C. Circuit Court of Appeals has upheld a challenge (PDF) to the contraception measure, which mandates employer coverage of birth control and other reproductive health services, like condoms and IUDs.

If the D.C. Circuit sounds familiar, it’s because it’s in the center of a fierce fight over judicial nominations, as Republicans fight to block President Obama’s attempt to fill vacancies and put his stamp on the court, which—until recently—has had a small conservative majority. Right now, of the eleven active judgeships, four were appointed by George H.W. Bush and his son, three by Bill Clinton, and one by Obama. If the White House can fill the remaining seats, it will give Democrats a strong advantage on an influential court. How influential? This ruling, for instance, deals a substantial blow to the president’s signature health care law—a key part of his administration and his legacy.

Which brings us back to the case, which comes from a lawsuit filed by Freshway Foods and Freshway Logistics, a food services firm. The owners, Phil and Frank Gilardi, are brothers with strong, conservative Catholic beliefs, who—prior to Obamcare—excluded coverage for birth control from their employee health coverage.

Writing for the D.C. Circuit, George W. Bush appointee Janice Rogers Brown dismisses the idea that there could be a compelling interest in mandating birth control coverage—which she calls “compelled subsidization of a woman’s procreative practices”—asking “What exactly is the government trying to ameliorate”, ignoring the extent to which the status quo ante placed real burdens on women’s health.

But the real meat of the opinion is in her—and the Court’s—evaluation of the Gilardi brothers’ claim that the contraception mandate is an imposition on their rights of religious expression. While the Court doesn’t give the company free exercise rights as persons under the First Amendment, it does say that choosing a health plan is an extension of the owner’s rights. Here’s more:

The burden on religious exercise does not occur at the point of contraceptive purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a healthcare plan. In other words, the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties. […]

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.

This, to put it simply, is ludicrous. As one of the dissenting opinions points out, it’s the company—a distinct legal entity—that’s picking the health insurance plan, not the brothers, who are still free to reject and oppose contraception:

They are not required to use or endorse contraception, and they remain free to openly oppose contraception. The Mandate requires nothing more than that the companies, not the Gilardis, offer medical insurance that includes coverage of contraceptive services for those employees who want it.

For a sense of how far-reaching the majority’s claim is, consider this 2012 opinion (PDF) from Missouri federal Judge Carol Jackson (also a Bush appointee) rejecting a similar claim. Employers, she writes, “Already pay salaries to their employees—money the employees may use to purchase contraceptives or to contribute to a religious organization. By comparison, the contribution to a health care plan has no more than a de minimus impact on the plantiff’s religious beliefs than paying salaries and other benefits to employees.”

Health insurance isn’t a gift or allowance from employers, it’s a form of compensation, plain and simple. If the birth control mandate imposes on religious employers by allowing employees the option of using their earned health benefits for contraception, then so does every other form of pay. Since, after all, the paychecks paid by the Gilardi brothers can also be used to buy condoms, pills, or anything else they find objectionable.

What they’re defending, in otherwise, isn’t religious freedom as much as it is the right to force particular religious practices (i.e., “You can’t buy birth control with your compensation.”) on anyone they employ.

It’s for this reason that this ruling isn’t the end of the story. It will appealed, and it will go to the Supreme Court, and then we’ll have to see if conservatives on the Court can sideline their hostility to the Affordable Care Act, and issue a ruling that doesn’t make “religious freedom” an official excuse for religious domination.