Dec 31, 2012

Owners of secular businesses don’t have the right to tailor employee health care plans to meet the owners’ religious beliefs, Americans United for Separation of Church and State and other groups have told a federal appeals court.

Americans United and three other groups on Friday filed a friend-of-the-court brief before the 8th U.S. Circuit Court of Appeals in the case O’Brien v. U.S. Department of Health and Human Services. The case concerns a federal regulation under the Affordable Care Act that requires most businesses to allow their employees to get no-cost birth control through insurance plans.

“Religious liberty includes no right to tell others what to do,” said the Rev. Barry W. Lynn, executive director of Americans United. “The appeals court must uphold this rule. Otherwise, Americans will find their medical rights defined by what their bosses believe about religion.”

The regulation is being challenged by O’Brien Industrial Holdings, a Missouri mining company whose owner, a Roman Catholic, insists that he opposes artificial forms of contraceptives and doesn’t want to allow his employees to access them.

O’Brien claims a religious liberty right to deny this coverage; the brief says that goes too far.

“Mr. O’Brien has every right to refrain from using contraception and to attempt to persuade others to do the same,” reads the brief. “But once he enters the secular market for labor to staff his secular, for-profit corporation, he may not force his religious choices on his employees.”

The brief argues that the regulation imposes only an incidental and indirect burden on O’Brien and serves to make certain that Americans have access to the full range of medical care.

“The insurance company provides the employees of O’Brien Industrial Holdings with a full menu of medical procedures and services, not just contraception alone, thereby distancing the corporation from any particular form of covered care,” the brief observes. “Even the insurance company pays for contraception only if an employee makes a private, independent decision to use contraception, and even that decision often is preceded by an independent physician’s decision to prescribe contraception.”

The brief was drafted by Americans United Legal Director Ayesha N. Khan, Senior Litigation Counsel Gregory M. Lipper, and Madison Fellow Ben Hazelwood.

Others groups signing one are: the Union for Reform Judaism, the Central Conference of American Rabbis, and the Women of Reform Judaism.