Concerns that Citizens United May Impact Your Access to Birth Control

What does Citizens United have to do with women’s health care?  According to a decision last week from the Seventh Circuit Court of Appeals, perhaps more than you may think.

Just a week after the Tenth Circuit Court of Appeals rejected Hobby Lobby’s petition to prevent enforcement of the Affordable Care Act’s contraception coverage provision, the Seventh Circuit Court of Appeals made a ruling at odds with that decision.  Last Friday the panel granted a motion for an injunction pending appeal to plaintiffs Cyril and Jane Korte who run Korte & Luitjohan Contractors, a construction company.  The Kortes had argued that the contraception mandate of the ACA violated their right to religious freedom. 

In other words, the Seventh Circuit Court of Appeals decided that – at least temporarily – the company does not have to comply with the Obama Administration’s rules that most employer-provided health care plans must cover birth control.

ThinkProgress’s Ian Millhiser points out that the Appeals Court cited Citizens United in their reasoning, a move that he finds “ominous.” Millhiser highlights a line from the decision – “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)” – before arguing that:

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.


Circuit Judge Ilana Diamond Rovner also raised issues with the decision.  In her dissent, she addressed the corporation issue head-on.  She noted that:


...it is the corporation rather than the Kortes individually which will pay for the insurance coverage. The corporate form may not be dispositive of the claims raised in this litigation, but neither is it meaningless: it does separate the Kortes, in some real measure, from the actions of their company.


Similarly, our affiliate People For the American Way Foundation’s Paul Gordon noted last month in reference to the Hobby Lobby decision that the question of where to draw the line in terms of government regulation of religious institutions and individuals is a tricky one.  Still, he pointed out:


The requirement to provide certain health insurance for your employees – not for yourself, but for people you hire in a business you place in the public stream of commerce – seems a reasonable one.

 

PFAW
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