Commentary Contraception

The O’Brien Decision: A Gift to the Obama Administration From a Bush Appointee

Imani Gandy

Late last month, Honorable Carole Jackson in the Eastern District of Missouri issued a forceful rebuke of the arguments being made by the various religious organizations that are filing lawsuits against the Department of Health and Human Services alleging that the birth control benefit infringes upon their religious liberty.

See all our coverage of O’Brien v. United States Department of Health and Human Services here.

Late last month, Honorable Carole Jackson in the Eastern District of Missouri issued a forceful rebuke of the arguments being made by the various religious organizations that are filing lawsuits against the Department of Health and Human Services alleging that the birth control benefit infringes upon their religious liberty.

Jackson’s opinion is sensible and grounded in the law, a point that seems odd to make considering that it is a judge’s job is to do just that… issue opinions that make sense as a matter of law. Still, after having read case after case in which courts swallowed the idea that requiring employers to offer health insurance plans that include contraception without a co-pay constitutes a violation of the First Amendment and infringes upon the religious liberty of both secular and non-secular companies (and their owners), reading an argument that made sense, both logically and as a matter of law, was refreshing.

In O’Brien v. United States Department of Health and Human Services, O’Brien Industrial Holdings (OIH) (a secular, for-profit company in St. Louis, Missouri, in the business of mining, processing, and distributing refractory and ceramic materials and products) and its owner Frank O’Brien alleged, among other things, violations of the Establishment Clause of the First Amendment and the Religious Freedom Restoration Act (RFRA). The Court dismissed plaintiffs’ claims.

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As I have noted in previous articles on this subject, the RFRA forbids the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

In O’Brien, the Court stated that “substantial burden must place more than an inconvenience on religious exercise,” and that “a substantial burden is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.” The Court then found that the birth control benefit does not constitute a substantial burden on the exercise of religious freedom:

[T]he challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. 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 OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.

Precisely.

The birth-control benefit does not require anyone to use birth control, nor does it require any employer to directly provide birth control to its employees. Rather, it leaves the decision to the employee herself. If a female employee want to use birth control, she can, and she can obtain it through her health insurance plan without a co-pay. If she doesn’t want to use birth control, she doesn’t have to.

In reaching its conclusion, the Court in O’Brien argued that RFRA is not intended to be used as a sword to coerce unwilling individuals to play by the sword wielder’s rules:

RFRA 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. RFRA 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.

Indeed, if the financial support of which plaintiffs complain was in fact substantially burdensome, secular companies owned by individuals objecting on religious grounds to all modern medical care could no longer be required to provide health care to employees.

The Court in O’Brien, like courts before it, side-stepped the issue of whether or not the term “person” in RFRA includes a corporation. Plaintiffs wanted the Court to “presume corporations are included within the word ‘person’ in RFRA” based upon Citizens United. (In my view, the “corporations are people, my friend” precept in Citizen’s United, which deemed corporations to be “persons” for purposes of the Free Speech Clause, goes too far when applied to the Establishment Clause. Corporations are not sentient beings capable of exercising religious freedom.) The Court declined, citing Newland v. Sebelius.

In Newland (which I discussed here), the Court demurred on both the Citizens United and the “substantial burden” issues. The Newland Court threw up its hands: It assumed the existence of a substantial burden on the exercise of religion, and moved on to the “compelling interest/least restrictive means” bit of analysis, ultimately finding that the government had failed to demonstrate that “refusing to exempt Plaintiffs from the preventive care coverage mandate” was the least restrictive means of furthering its compelling interest in promoting women’s public health.

The Court in O’Brien, however, declined to address the Citizens United/corporations-are-people-too analysis because it didn’t need to address it. The Court determined that the birth control benefit did not substantially burden religion, and that was enough to dismiss the RFRA claims. And, in tackling the “substantial burden” question head-on, the Court provided somewhat of a gift to the government—a well-reasoned argument (from a Bush appointee, no less!) that provides guidance to other courts, not just in the Eighth Circuit but across the country.

[You can read my mark-up of the Court’s order here on Scribd.]

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