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Bush-Appointed Judge Upholds Obama Administration’s Birth Control Coverage Rules

By Ian Millhiser on October 1, 2012 at 3:30 pm

"Bush-Appointed Judge Upholds Obama Administration’s Birth Control Coverage Rules"

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On Friday, Judge Carol Jackson, a George H.W. Bush appointee to a federal court in Missouri, rejected a Catholic business owner’s challenge to the Obama Administration’s rules requiring employer health plans to cover birth control. Like the many copycat lawsuits asserting similar legal claims, the plaintiffs in this suit argued that the birth control rules substantially burden their faith by requiring them to pay for employee health benefits which might then in turn be used to pay for birth control. As Judge Jackson’s opinions explains, however, this argument proves too much:

The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [an employer's health] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. . . . [Federal religious freedom law] is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. [It] does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own. . . .

[T]he health care plan will offend plaintiffs’ religious beliefs only if an [] employee (or covered family member) makes an independent decision to use the plan to cover counseling related to or the purchase of contraceptives. Already, [plaintiffs] 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 plaintiff’s religious beliefs than paying salaries and other benefits to employees.

A key insight in this opinion is that salaries and health insurance can be used to buy birth control, so if religious employers really object to enabling their employees to buy birth control, they would have to not pay them money in addition to denying them comprehensive health insurance. An employer cannot assert a religious objection to how their employees choose to use their own benefits or their own money, because religious freedom is not a license to “force one’s religious practices upon others.”

Significantly, Jackson did not simply reject the plaintiffs’ claim that the birth control rules violate the Constitution’s Free Exercise Clause, a weak legal argument that conflicts with a 1990 Supreme Court decision written by conservative Justice Scalia, she also rejects the plaintiffs’ much stronger claim that the rules violate a federal law known as the Religious Freedom Restoration Act (RFRA). RFRA gives religious objectors significant, although not entirely insurmountable, rights against laws they do not wish to follow for religious reasons. So Jackson’s opinion rejects the strongest possible legal argument against the Obama Administration’s contraception rules.

Notably, Jackson’s view was, at least until recently, not particularly controversial. Eight years ago, the California Supreme Court rejected a very similar challenge to a state law protecting access to birth control. Five of the court’s six Republican justices voted to uphold the law. The sole justice who voted to strike down the law, future federal judge Janice Rogers Brown, once compared liberalism to “slavery” and Social Security to a “socialist revolution.”

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