Bush Appointed Federal Judge Strikes Down Challenge To Affordable Care Act Birth Control Provisions

Author: October 1, 2012 6:37 pm

Think Progress reported that on Friday, Judge Carol E. Jackson, a Missouri federal judge appointed by President George H.W. Bush, rejected a series of challenges to the Affordable Care Act’s provision requiring employers to cover birth control. The plaintiff in the case, O’Brien Industrial Holdings (OIH), filed suit arguing that the birth control rules in the law posed a substantial burden to the faith of the owner, Frank. R. O’Brien, a practicing Catholic. In her decision, Judge Jackson wrote:

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.


In a nutshell, the ruling states that since an employer pays a salary to an employee, that employee would still be able to use the money to purchase birth control or engage in other activities that are counter to the employer’s religious beliefs. In order to ensure that an employee did not act in a way contrary to the religious beliefs of an employer, that employer would have to withhold pay as well as benefits. Religious freedom does not mean that an employer has the power to compel an employee to abide by the beliefs of the employer.

Jackson’s ruling rejected the plaintiff’s claim that the contraception rule in the Affordable Care Act violates the Religious Freedom Restoration Act (RFRA). In doing so, she negated their strongest claim against the Obama Administration’s contraception provisions.

This is the latest in a series of lawsuits that have been brought against the birth control issue in the Affordable Care Act.

It is notable that in 2004, five out of six Republican justices on the California Supreme Court ruled that a 1999 California law guaranteeing access to contraception in many employer-provided health care plans was constitutional. The dissenting judge, Justice  Janice Rogers Brown, compared liberalism to slavery and Social Security to a Socialist revolution.

Ann Werner is a blogger and the author of CRAZY and Dreams and Nightmares. You can view her work at ARK Stories

Visit her on Twitter @MsWerner and Facebook Ann Werner

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