Citing Citizens United, Federal Appeals Court Blocks Access To Birth Control

Ian Millhiser
Think Progress / News Report
Published: Monday 31 December 2012
United States v. Lee established—with no justice in dissent—that religious liberty does not allow an employer to “impose the employer’s religious faith on the employees,” such as by forcing employees to give up their own rights because of the employer’s objections to birth control.
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On Friday, a divided panel of the United States Court of Appeals for the Seventh Circuit, in an order joined by two conservative Republican appointees, temporarily immunized a company from the Obama Administration’s rules guaranteeing that employer-provided health plans cover birth control. Judge Ilana Rovner, a George H.W. Bush appointee, dissented.

The order is brief, and it mostly deals with the most significant issue in this case in just a single paragraph—holding that a for-profit corporate employer can claim that its religious liberties were somehow violated:

[T]he government’s primary argument is that because K & L Contractors is a secular, for‐profit enterprise, no rights under RFRA are implicated at all. This ignores that Cyril and Jane Korte are also plaintiffs. Together they own nearly 88% of K & L Contractors. It is a family‐run business, and they manage the company in accordance with their religious beliefs. This includes the health plan that the company sponsors and funds for the benefit of its nonunion workforce. That the Kortes operate their business in the corporate form is not dispositive of their claim. See generally Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). The contraception mandate applies to K & L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to operate their company in compliance with it.

As a matter of current law, this decision is wrong. As the Supreme Court explained in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Lee established — with no justice in dissent — that religious liberty does not allow an employer to “impose the employer’s religious faith on the employees,” such as by forcing employees to give up their own rights because of the employer’s objections to birth control.

Nevertheless, the Seventh Circuit’s citation to Citizens United is an ominous sign. Lee was decided at a time when the Court understood that corporations should not be allowed to buy and sell elections. That time has passed, and the precedents protecting against corporate election-buying were overruled in Citizens United. It is not difficult to imagine the same five justices who tossed out longstanding precedent in Citizens United doing the same in a case involving whether employers can impose their religious beliefs on their employees.

It is likely that we will know soon whether those five justices are prepared to do so. The Seventh Circuit’s decision is at odds with a decision out of the Tenth Circuit, and the Supreme Court typically agrees to hear cases where two federal appeals courts disagree.



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6 comments on "Citing Citizens United, Federal Appeals Court Blocks Access To Birth Control"

Idiolect

January 08, 2013 1:25pm

Medicare for all would solve this problem. Employers should not be involved with private health decisions of their employees.

anono

December 31, 2012 4:49pm

Not getting pregnat is the best way to prevent abortion or another unwnated child from a living hell. Birth control/contraception as well as a comprehensive education in human reproduction and the responsibilities thereof are the best methods to prevent unwanted pregnancies, unloved children and thusly abortions. No mythology nor legality nor moral assumptiveness will prevent what nature intends on happening from happening. The best thing to do is to pull our heads out of our asses and accept the fact that sex makes people. And you can't be fruitful and multiply without it.

minnesotamark

December 31, 2012 4:20pm

Interestingly, the same protections could then allow for an islamic family company impose berkas and descrimination againist women?
On the other side, is there no difference between paying for birth control vs the mandate to provide the abortion drug, will companies be manadated to provide insurance for abortions that they consider in their heart of hearts to be murdering an unborn child. Surely if we think for a moment we can at least understand their crisis of conviction without branding them as criminals.

oldhat

December 31, 2012 12:26pm

even if they operated as non corp a for profit org should have to follow the law

anono

December 31, 2012 12:05pm

As a "corporation" the Korte's they are protected by 'law' from any personal responsiblity/liability for the actions or inactions of their corporation. So too are their employees protected by 'law' from the actions or inactions of their employer. By incorporating, the Kortes agree to, in exchange for the protection of incorporation, to obey the laws and terms of incorporation of those being the illegalization of religious imposition. But what the Kortes want is to have their cake and to shit it upon others too.
All they have to do is to dissolve their corpaoration and take full fiscal and legal responsibility for the business upon themselves. At which point they will have the freedom to religiouly discriminate their employees. But as long as they desire the legal protections offered by the United States of America thru incorporation, they need to keep their religious delusions to themselves.

greggerritt

December 31, 2012 11:39am

one has to think we need to get rid of all the lawyers, all they seem to do is protect rich criminals against the public.