The DC Circuit federal appeals court delivered a blistering rebuke to the Affordable Care Act’s requirement that insurance cover the costs of birth control, saying it violated the religious freedom of two Roman Catholic businessmen. The decision, written by a woman but dripping with sarcasm about gender equality, makes it ever likelier that the Supreme Court will have the final word.
“It is clear the government has failed to demonstrate how such a right [to contraception coverage] can extend to the compelled subsidization of a woman’s procreative practices,” wrote Judge Janice Rogers Brown, a George W. Bush appointee, rejecting the Obama administration argument that covering contraception furthers the government’s interest in gender equality. (Rush Limbaugh made the same argument.) In the tradition of conservative judges flouting science when it comes to women’s bodies, Brown also gave airing to a conservative myth that hormonal birth control causes cancer.
At issue is whether a for-profit company (that is, the bosses of the company) can have religious liberty violated by the requirement to cover women’s contraception. Primarily-religious organizations, as defined by the Obama administration, are already exempt, and there is an accommodation for non-profit organizations with a religious affiliation. This particular case was brought by Freshway Foods and Freshway Logistics owners Francis and Philip Gilardi, but a total of 39 for-profit businesses have sued the Obama administration, claiming that covering employee birth control tramples on their rights under the Religious Freedom and Restoration Act. The circuit courts have been divided–the Sixth Circuit said a corporation doesn’t have the same religious rights as a person does–but the balance has tipped in favor of the refusers.
The D.C. Circuit Court is the same one that Obama has been accused of “packing” because he is trying to exercise his right to nominate judges to it. And this is the same contraceptive coverage mandate that dominated the 2012 election, allowing Republican primary members to trumpet it as a violation of religious freedom. Mitt Romney echoed the line. That gave plenty of political ammunition to the Obama campaign, which successfully argued (at least politically speaking) that Republicans were trying to take away birth control. Since the election, the struggle has primarily been in the courts.
Last week, the Department of Justice formally asked the Supreme Court to hear a similar case brought by Oklahoma company Hobby Lobby in the Tenth Circuit, where the court ruled against the government, because it provides the broadest vehicle for settling the question. Stay tuned to hear what Antonin Scalia thinks about birth control access.
Irin Carmon