Appeals Court Deals Blow to Contraceptive Mandate

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A divided appeals court panel sided Friday with Ohio business owners who challenged the birth control mandate under the new federal health care law.

The business owners are two brothers, Francis and Philip M. Gilardi, who own Freshway Foods and Freshway Logistics of Sidney, Ohio., and challenged the mandate on religious grounds. They say the mandate to provide contraceptive coverage would force them to violate their Roman Catholic beliefs and moral values by providing contraceptives such as the morning-after pill for their employees. The law already exempts houses of worship from the requirement.

The ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit is one of several on the birth control issue, which likely will be resolved by the Supreme Court. There are at least three other rulings by federal appeals courts on the mandate: One sided with Oklahoma businesses; and two sided with the Obama administration in challenges brought by Pennsylvania and Michigan companies.

Writing for the majority, Judge Janice Rogers Brown wrote that the mandate "trammels the right of free exercise—a right that lies at the core of our constitutional liberties—as protected by the Religious Freedom Restoration Act."

Written By: Frederic J. Frommer
continue to source article at abcnews.go.com

34 COMMENTS

  1. Take that a step further. They should not have to pay their employees either, because employees might buy condoms.
    They should not have to pay for any health care because Catholics insist that botched abortions be left untreated.
    They should not have to pay mileage when employees run errands, because they might stop off at a pharmacy for some birth control pills.

    The US considers only the “rights” of the religious fanatic, and never rights of those whose lives they are interfering. The problem is the judges themselves are infected by the god virus. They are as driven as any cretin to spread the virus. The notion of a right to control others should be a contradiction in terms.

    • In reply to #2 by justinesaracen:

      An obvious case for the Supremes. Precedent suggests that, even with RC Scalia on the bench, it will be overturned.

      I’m not so sure. The supreme court has already rules on the Affordable Care Act (ACA) and on that one the usual left-right balance of the court was a bit off. Kennedy is usually the swing vote, the one who can sometimes side with the left and sometimes the right and he voted against the ACA. It was only saved by Roberts of all people, the guy Bush put on the court and on most things almost as conservative as Scalia, who voted for the ACA.

      So on a new case that just focused on the religious issue, I think it could go either way. IMO, the left in the US should be using this as an argument why we shouldn’t stop with the free market BS reform and just embrace actual universal healthcare the way the rest of the civilize world does.

  2. If the logic of this argument is followed, employers should also be allowed to refuse to employ anyone who does anything in their personal lives that the employer decides is at odd with his/her/their/its faith.

    • In reply to #4 by QuestioningKat:

      Is the issue against all contraception or just the morning after pill?

      It includes all contraception. In fact, it isn’t really just about contraception as the medication that is used mostly for contraception can also be prescribed for other conditions as well. The woman who was going to testify before Congress about this a long time ago (Sandra Fluke) was going to tell a story about a friend of hers who needed but couldn’t afford contraception pills for medical reasons that had nothing to do with preventing pregnancy.

      • In reply to #7 by Red Dog:

        In reply to #4 by QuestioningKat:

        Is the issue against all contraception or just the morning after pill?

        It includes all contraception. In fact, it isn’t really just about contraception as the medication that is used mostly for contraception can also be prescribed for other conditions as well. T…

        Yes, it is actually quite common for the pill to be prescribed for medical reasons. 25 years ago, I had a job which did not cover the cost of contraception and had difficulty getting coverage for the pill being medically prescribed. Most women needed to put money aside in a flexible spending account for their birth control.

  3. I have to admit I’ve never liked the Affordable Care Act (aka Obamacare) very much. The idea that the government essentially mandates that people have to buy something, even something as sensible as basic health insurance, doesn’t sit right with me. Of course the incredibly ironic thing is that it is the free market freedom worshipers who came up with the idea in the first place. The logical solution, the solution that the rest of the first world has adopted except for the US would just be to have universal healthcare, expand the Medicaid system to give basic healthcare coverage to all citizens. But that would never have made it through Congress, even back when Congress hadn’t been taken over by lunatics as it is today. So the compromise was an idea spawned in right wing think tanks that required everyone to purchase health insurance and that was first used with great success by a Republican governor (Mitt Romney).

    On this specific question, keep in mind that many women use contraceptive pills for reasons other than birth control. They can be prescribed for many other reasons.

    • In reply to #6 by Red Dog:

      I have to admit I’ve never liked the Affordable Care Act (aka Obamacare) very much. The idea that the government essentially mandates that people have to buy something, even something as sensible as basic health insurance, doesn’t sit right with me….

      Opponents of the ACA have done a great job convicincing people that a universal single-payer health care system is essentially a communist takeover of the US.

      I live in Canada and travel often to the US on business. Many people I meet feel sorry for us Canadians – having to suffer this oppression. I tell them, no, look, we actually like what we have. To be sure, there are problems. Wait times for non-essential surgery are high. That’s because priority is given to those who need it most, not simply to those who can pay. Some here have argued for a two-tier system, so that those who can afford it get access immediately. But I think most Canadians prefer things the way they are.

  4. Yet never a peep about having to offer employee insurance that covers Viagra, Cialis, and testosterone for men – which most insurances have covered for years. Apparently, firm long-lasting erections to facilitate sex are of such vital, life-saving importance that these drugs go without question, yet birth control for women (the same women who may be contending with these drug-induced boners) is a horrible, awful, mortal sin. Funny – I’ve never heard of a man dying from a limp dick or lack of sex, yet women die of pregnancy complications by the thousands every year.
    But what the hell – they’re just slutty sluts who deserve it, right? After all, it’s not about babies – it’s about sex…which women should never have except with a man’s approval and under his control.

    • SueBlue

      drug-induced boners

      Great name for a band or what?

      In reply to #9 by Sue Blue:

      Yet never a peep about having to offer employee insurance that covers Viagra, Cialis, and testosterone for men – which most insurances have covered for years. Apparently, firm long-lasting erections to facilitate sex are of such vital, life-saving importance that these drugs go without question, ye…

    • Oh, and if you listen to the viagra commercial (or Cialis or Levitra) HAHAHAHAH Levitra!!! The pharm employee who coined that drug name should get credit for the funniest drug name… Anyway, those drug induced boners are sometimes four hours long and can be accompanied by blindness and a man going deaf. Can you visualize this? A goofy guy with a four hour boner who can’t see where he is putting it or hear the results?

      Hey, wait, that is EXACTLY why the religious folks won’t come out against these drugs. It is the perfect metaphor for religious attitudes towards sex.

      In reply to #9 by Sue Blue:

      Yet never a peep about having to offer employee insurance that covers Viagra, Cialis, and testosterone for men – which most insurances have covered for years. Apparently, firm long-lasting erections to facilitate sex are of such vital, life-saving importance that these drugs go without question, ye…

    • In reply to #9 by Sue Blue:

      Yet never a peep about having to offer employee insurance that covers Viagra, Cialis, and testosterone for men – which most insurances have covered for years. Apparently, firm long-lasting erections to facilitate sex are of such vital, life-saving importance that these drugs go without question, ye…

      This brings up another issue…There are plenty of women who have sexual dysfunction that is medical rather than psychological. The development of a female Viagra is lagging behind well over a decade. Many insurance companies seem reluctant to cover the costs of any treatment since sexual pleasure/orgasm is not necessary for female reproduction. Somehow quality of life for women is less of a priority. Then people wonder why so many women go the way of alternative health and listen to people like Suzanne Somers.

      • Hey,
        On a related note, what about a pill that men can take to ensure that they cannot get a woman pregnant? Once conception occurs, women hold every single reproductive card. Their decisions govern the situation. The can even decide that the man will never see their child AND pay child support. I am not complaining about the situation, however, 95% of custody battles end with the woman having the controlling interest. Again, i am actually not railing against this statistic, but rather using to wonder aloud “why isn’t there a pill that men can take?”. I’d put my son on it today and not take him off of it until after college and gainful employment.

        Again, please do not misunderstand (or anyone else, misrepresent) what I am stating here, I am just piggybacking your post to ask why is there a birth control pill for women (that they can take, not take, forget to take “forget” to take etc…..) But no similar pharmaceutical for men?

        In reply to #21 by QuestioningKat:

        In reply to #9 by Sue Blue:

        Yet never a peep about having to offer employee insurance that covers Viagra, Cialis, and testosterone for men – which most insurances have covered for years. Apparently, firm long-lasting erections to facilitate sex are of such vital, life-saving importance that these…

      • In reply to #21 by QuestioningKat:

        In reply to #9 by Sue Blue:

        This brings up another issue…There are plenty of women who have sexual dysfunction that is medical rather than psychological. The development of a female Viagra is lagging behind well over a decade.

        How much of that “dysfunction” is actually male ineptitude paired with either female unawareness thereof or females too polite/shy/embarrassed to point this out will remain unknown whilst this stays a, ahem, touchy subject. For that, who’re you gonna thank? Religion.

  5. Fekwit xtians interpreting religious dogma to suit themselves.

    If they were real xtians and not imbecile catlicks they would also:

    Give no thought for the morrow and abandon their businesses altogether (but that would be a step too far??)

    How’s about ‘If thou wilt be perfect sell what thou hast and give it to the poor’. Not much of that goes on among these godly, xtians does it. But give these sanctimonious, supercilious self righteous, pontificating bastards half a chance to inflict their particular brand of insanity on someone else.

    It is time the lawyers had enough savvy to challenge religios on the exact extent of their beliefs and insist they show proof absolute by commitment that they follow all the other barmy dogmas of their religion before entertaining there views on how others live. But typical of xtians and a common attitude among their preachers is a want to right the business of others while failing to comply with the rules of their own.

  6. I’m not sure I understand these slippery slope comments about how employees might by condoms. The mandate is clearly that. You know for certain your business is spending money on something against your religion, whereas you don’t know for certain the employee will take their salary and pick up condoms on the way home. Clearly a difference.

    I think the argument should be that of a different slippery slope. Where do religious objects stop? What if your religion is against any modern medicine of any kind? Can you then opt out of the ACA all together? Who is to say what is a valid religious objection? Who is to say what a valid religion is? I guess the SCOTUS?

    • In reply to #12 by esmith00000:

      I’m not sure I understand these slippery slope comments about how employees might by condoms.

      I presume you are referring to me. It was not intended as a slippery slope argument. I am saying the companies by their action are attempting to control the private bedroom behaviour of their employees. It is in principle no different from taking measures to stop them buying condoms. The judges focused on the freedom to meddle in the employees lives, without paying any attention of the right of employees to be left alone. It is not as though the brothers were being asked to touch used condoms or prescribe or dispense birth control. Their horror is phony. They are looking for an excuse to control others and delay making payments.

    • In reply to #12 by esmith00000:

      I’m not sure I understand these slippery slope comments about how employees might by condoms. The mandate is clearly that. You know for certain your business is spending money on something against your religion, whereas you don’t know for certain the employee will take their salary and pick up con…

      That isn’t true… as not all employees would use that benefit. Not that it should matter as this is part of the employees pay package. The employer is not paying for it themselves, like they are not paying the wages for the employees themselves. The BUSINESS is paying those wages and benefits as COMPENSATION for provided labor. I would understand the argument that they are making if the government is forcing them to spend their PERSONAL money, but they aren’t. The government is requiring the BUSINESS to add this to the workers’ wages, much like the government requires a MINIMUM WAGE to be paid by the employer.

  7. But don’t the employees have a right to the health services they pay for with their taxes?

    Ok, lets say that I had a business in the USA. My religion forbids killing people. Therefore I refuse to collect taxes on my employees because some of it goes for equipment and contractors to kill people. What the Gilardis are doing is not that different.

  8. Judge Rogers Brown describes herself as “conservative”. Read about her legal theories.

    She is black and thus statistically belongs to one of the evangelical churches. The God virus is like the Ophiocordyceps unilateralis ant fungus. It controls the mind of even learned judges to determine their decsions.

  9. This is a bad ruling. The Courts should not be deciding what religious rules companies can invoke to trump laws that everyone has to follow; it simply opens the door to more of the same. The company could next argue that they have the right to exemptions from other labor laws based on their religious beliefs, such as making using birth control a cause for termination. The Catholics are not being forced to use birth control. The company involved is not being forced to buy and hand out birth control. All health insurance policies are being standardized to cover birth control and other reproductive health issues. If we had a national single payer plan, birth control would be covered for everyone, and this company would have no grounds to withhold tax payments that pay for that.

    The SCOTUS will have to make the final call on this. At this point corporations have been given rights of personhood, but there have been no rulings about a corporation’s rights of religion. Some are pushing for those rights. I doubt that will happen, and given the vast can of worms that is opened by this ruling, I would expect the SCOTUS to overrule them and try to close that can quickly.

  10. I have just thought of a solution to this problem. For those who do not wish to provide birth-control health care, let them. Provided that pay extra taxes to subsidise those medical establishments who are willing to provide birth-control health care. The subsidy would be to compensate for their extra workload. The public still get the same quantity/availability of birth-control health care, everybody is happy. (the last bit was a bit of sarcasm). If the value of the subsidy is fair there is no reasonable objection to this solution.

  11. Although conservatives act like the Constitution is a holy ducument (what utter garbage!), I feel that there shouldn’t be ANY religious liberties. Rules and regulations should apply to all citizens. Exceptions should only be for people who have disabilities, not for people who hold silly beliefs.

  12. Given that the court has decided that the first amendment also covers freedom of association, by this religious logic, racists would be allowed to enforce their own bigoted views in the workplace.

  13. In reply to #26 by crookedshoes:

    Hey,

    The[y] can even decide that the man will never see their child AND pay child support.

    Interesting. I would have thought in Australia that cases where the man wants to see the children but has zero access would be very rare.

    But no similar pharmaceutical for men?

    The usual thing people say I think is that it’s really hard to control male fertility without causing impotence.

    Michael

    • Interesting (and I know that you know what you are talking about), does this mean that you are aware of the pharm industry trying this and meeting with failure? It seems that they’d make a boatload of money if they pulled it off….. And, i know that boatloads of money can get pharm companies attention…. Anyway, a male pill would be pretty popular and lucrative.

      In reply to #30 by mmurray:

      In reply to #26 by crookedshoes:

      Hey,

      The[y] can even decide that the man will never see their child AND pay child support.

      Interesting. I would have thought in Australia that cases where the man wants to see the children but has zero access would be very rare.

      But no similar pharmaceutical fo…

      • In reply to #33 by crookedshoes:

        Interesting (and I know that you know what you are talking about), does this mean that you are aware of the pharm industry trying this and meeting with failure?

        All I know is last time I looked this up there wasn’t much happening. But I just had another look at wikipedia and there seem to be some new things in the pipeline (as it were!). They seem to be targeting sperm production or trying to chemically block ejaculation.

  14. There is a simple solution to this!
    Just pass legislation that businesses can opt out of paying towards contraception health-care, providing that they pay the alternative higher cost of 5 years maternity leave on full pay, in the event of pregnancy of employees from whom they have withheld contraception!
    This will cover the pre-school years and should help to focus the profit motivated business mind!. Some may wish to argue for a longer period of cover or the inclusion of medical costs related to pregnancy or children’s education costs.

  15. They should not have exempted Churches or anyone else at the offset. After all, the worker does not HAVE to buy condoms of he is a good Catholic, and the “morning after” pill that they are talking about is the one that strengthens the wall lining (must be taken within 36 hours to be effective) so that sperm cannot arrive at the egg for fertilization, which is not an abortion pill, but an “oops, I got drunk last night and messed up and better fork over $50 for that damn pill”.

    In either case, it is about suppressing the sperm from reaching the egg, and for some, the use of condoms could be life-savings if one’s partner has aids. And all of this because “my God says that it’s wrong, and you cannot make me violate my God”. – Nobody is making anyone violate – it is just that employers will be providing health care for people of all ideologies, and it is not that the employer is handing out condoms, it is up to the employee to figure out what he or she is going to do with his or her life away from work.

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