Not a burden

The Obama administration so far has been able to dodge every lawsuit against its contraceptive health insurance mandate except one, which it lost when the case was decided on the merits of the mandate.

But on Friday, a District judge in Missouri dismissed another contraceptive mandate lawsuit, and for the first time on the constitutional merits of the case.

Frank O’Brien, the Catholic owner of O’Brien Industrial Holdings, a mining company in Missouri, had filed the most recently discarded lawsuit. O’Brien objected to paying for contraceptive and abortifacient coverage for his 80 or so employees, but U.S. District Judge Carol Jackson said the mandate was not a substantial burden on his religious freedom. Judge Jackson wrote in her ruling that the owner providing coverage for contraceptives was not much different from the owner paying a salary to employees that they then used to buy contraceptives.

Thus far the only lawsuit that has been successful has been from another religious owner of a business, Hercules Industries in Colorado. A Colorado District judge issued a preliminary injunction against the mandate there, saying the mandate could burden the business owners’ religious freedom, a decision the Obama administration has appealed.

The mandate goes into effect for most religious organizations in August 2013, but it already applies to religious business owners. O’Brien Industrial Holdings has to renew its healthcare plan for its employees by January 2013. Courts have dismisses three other cases concerning religious organizations because the mandate doesn’t yet apply to them, and judges have said the administration could change the religious exemption before next year. A couple dozen cases await decisions, including another case involving religious business owners, where the Christian owners of the national chain Hobby Lobby are plaintiffs.

Judges have dismissed the three other cases concerning religious organizations without discussing the merits of the cases. But since the mandate already applies to the mining company, the Missouri judge spent 29 pages on the merits and found the religious business owner’s case wanting (download a PDF of the opinion). In fact, Jackson gave a full-throated defense of the mandate, in contrast to the judge’s ruling for the religious business in the Colorado case (read a PDF of the Colorado opinion).

“On balance, the threatened harm to plaintiffs, impingement of their right to freely exercise their religious beliefs, and the concomitant public interest in that right strongly favor the entry of injunctive relief,” wrote U.S. District Judge John Kane in the decision in favor of the Colorado business.

But Jackson said “indirect financial support” of a practice O’Brien objects to did not constitute a “substantial burden on plaintiff’s religious practice.”

“Instead,” she wrote, “plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives.”

The judge said the law did not allow the business owner to impose his religious beliefs on other people through his money.

“[The Religious Freedom Restoration Act] does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own,” Jackson wrote.

O’Brien has appealed the decision to the 8th U.S. Circuit Court of Appeals.