D.C. Circuit Court of Appeals rules against contraceptive coverage in ‘ObamaCare’ in a deeply disturbing decision


Posted  by AzBlueMeanie:

"Corporations are people, my friend." – Willard "Mittens" Romney

Apparently the legal fiction of a corporate entity also enjoys rights far superior to the individual rights and liberties guaranteed to citizens by the U.S. Constitution and Bill of Rights. This is a brave new world of corporatocracy, my friends.

The D.C. Circuit Court of Appeals today upheld a legal challenge to the provision of the Affordable Care Act (ObamaCare) that mandates employer coverage of birth control,
arguing that it “trammels” the expression of religious freedom.

Wait, the legal fiction of a corporate entity has a "religion" (other than profits and shareholder dividends)? And it is free to impose its religious beliefs on its employees under some perverse notion of "religious liberty"?

This is the exact opposite meaning of religious liberty: it is a "get out of jail free card" for an employer to discriminate against its employees of other religious beliefs, or no religious beliefs, who do not share the corporate entity's "religious beliefs" — under the sanction of federal law, which would violate the "free exercise" clause of First Amendment religious liberty.

Steve Benen reports, Court rules against ACA contraception policy:

Birth-control opponents wonan especially significant round this morning.

The D.C. Circuit Court has upheld a legal challenge to the
provision of the Affordable Care Act (Obamacare) that mandates employer
coverage of birth control, arguing that it “trammels” the expression of
religious freedom. While the legal process over the issue isn’t final,
the decision hands a huge political victory to conservative activists
that have long made this argument.

The ruling is online here (pdf).

At issue is a lawsuit filed by the owners of an Ohio company
named Freshway Foods. Brothers Phil and Frank Gilardi, who place
anti-abortion messages on their delivery vehicles, are on board with
providing health care coverage for their employees, but they oppose
birth control and want to exclude contraception from the company’s
insurance package.

Because the Affordable Care Act treats birth control as basic
preventive care, the Gilardi brothers reached out to TV preacher Pat
Roberson’s legal group, the American Center for Law and Justice, to file
suit, which argued that the Gilardis’ religious beliefs apply to their
for-profit business.

The D.C. Circuit found the argument persuasive – the Gilardi
brothers can impose their religious beliefs on their employees through
their private-sector business
. It is, the court said, part of their
First Amendment rights.

Uh-huh . . . "money = speech" in the context of political speech, according to our conservative activist U.S. Supreme Court, but this is a limited right and when that right conflicts with the individual constitutional "right to marital privacy," Griswold v. Connecticut, 381 U.S. 479 (1965) (state prohibition of contraceptives), the political speech of a legal fiction corporate entity must give way to the corporal rights of an actual live human being who is a citizen and enjoys the full panalopy of rights, liberties and privileges under the U.S. Constitution that the legal fiction of a corporate entity does not under law.

In short, the employer cannot invade the constitutional privacy right of its employees in matters of contraception. "It ain't nobody's business but my own."

It is, to my eyes, a deeply bizarre ruling. At one point, one
of the conservative judges – a George W. Bush appointee – goes so far
as to describe contraception coverage as “compelled subsidization of a woman’s procreative practices.”

But equally important is how radical the D.C. Court’s
perspective really is. A company’s owners are certainly entitled to
their spiritual beliefs, but as we discussed in July, companies do not have their own theological perspectives. People can be religious; corporations can’t.

As the 3rd Circuit Court of Appeals explained over the summer
in a related ruling, “[T]he law has long recognized the distinction
between the owners of a corporation and the corporation itself. A
holding to the contrary – that a for-profit corporation can engage in
religious exercise – would eviscerate the fundamental principle that a
corporation is a legally distinct entity from its owners

Today, the D.C. Circuit said the exact opposite.

The controversy now appears slated for the U.S. Supreme
Court, with two appellate benches (the D.C. Circuit and the 10th
Circuit) ruling against the contraception policy and another (3rd
Circuit) ruling in support of the policy.

But in the meantime, keep two additional angles in mind.
First, if conservative opponents of birth control prevail, the
implications will be sweeping. Not only will this put a whole new twist
on corporate personhood
, but a private business’ owners would have the
legal right to keep all kinds of health care – vaccines, treatment of
sexually transmitted diseases, psychiatric care, mammograms, etc. – from
their employees if the owners had a religious objection. That may sound
insane, but it’s exactly what several conservative judges have already
, including the D.C. Circuit this morning.

And second, when I complain incessantly about the importance of judicial nominee fights in the U.S. Senate, this is why.

Related to this last point: Sarah Binder writes at the Monkey Cage, Will
nuclear winter come to the Senate this Autumn? Could be a hot fall!


  1. It would appear that if corporate rights are put on the line in a conservative (i.e. pro-corporate) court, then the individual loses — even though they shouldn’t. But what if the argument is made not corporation vs. individual, but individual vs. individual? I suppose this is simplistic but isn’t this a case of one person’s religious views (the employer) being imposed on another person (the employee)? And in this case couldn’t an argument be made that the less powerful person’s rights predominate, in this case the employee’s?

    Alternatively, could an argument be made that neither the employer’s nor the employee’s rights are being abrogated as the government is simply providing for the national good by setting insurance rules that provide for minimal acceptable health care according to the national medical standards (which include contraceptive coverage). And that neither the employer nor the employee are required to use contraceptives.

    Final question, if the President prevails either by Senate filibuster reform or by the threat of filibuster reform forcing a vote on his Appeals Court nominees, does this case go back there, or will it have to be heard by the Supreme Court?

    But what the heck do I know, I’m not a lawyer.

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