Friday, November 2, 2012

Another Catholic Business Protected Against Free Birth Control Rule - for now

 
Good news. Contrary to the O’Brien case in St. Louis, and consistent with the Hercules case in Colorado, a judge has protected a Catholic-owned business from having to comply with Obamacare’s Free Birth Control Rule. First, since the company is owned by a Catholic family, it substantially burdens their faith. From Legatus v. Sebelius:
 
Catholicism teaches that it is a sin to use, provide, or otherwise support contraception. Weingartz, as a Catholic, asserts that having Weingartz Supply Co. provide or participate in health insurance that includes the FDA-approved contraceptive methods violates his sincerely-held religious beliefs. The HRSA Mandate requires Weingartz Supply Co., as an employer with more than fifty fulltime employees, to offer health insurance. If Weingartz Supply Co. chooses not to provide coverage in order to avoid the HRSA Mandate, then beginning in 2014 Weingartz Supply Co. will incur an annual penalty equal to $2,000 multiplied by the number of Weingartz Supply Co.’s full-time employees minus 30. Plaintiffs therefore assert that the HRSA Mandate substantially burdens Weingartz’s exercise of religion.
Under the Religious Freedom Restoration Act–which will determined these cases more than the First Amendment–once a person has shown a “substantial burden” on his/her freedom of religion, then the government must prove it has a “compelling government interest” in the law as applied to the plaintiff. The government claimed two bases for finding a compelling interest:
First, the Government has an interest in promoting public health generally…the court understands the Government to argue that “women experiencing an unintended pregnancy may not immediately be aware that they are pregnant; their entry into prenatal care may be delayed, they may not be motivated to discontinue behaviors that present risks for the developing fetus; and they may experience depression, anxiety, or other conditions.”…The ability to control pregnancy spacing is also important, the Government argues, because short interpregnancy intervals are “associated with low birth weight, prematurity, and small-for-gestational-age births.”
The second alleged interest is “gender equality:”
The Government argues that providing cost-free access to pregnancy prevention services, devices, and care eliminates gender-based disparity in health care costs. Women of reproductive age spend sixty-eight percent more in out-of-pocket health care costs than men…The Government asserts that when health insurance plans impose cost-sharing for pregnancy-avoidance preventive care—in truth, the court adds, for care of any kind—the costs of such care can become a financial barrier that discourages or prevents access to it. In the present circumstance, the Government argues that imposing costs of any kind serves to inhibit women from accessing and utilizing contraceptive methods. The Government further argues that by eliminating cost-sharing for preventive care, and by better enabling women to decide whether or when to have children, the Government’s aim to “advance gender equality”is served.
Me: That may be a laudable goal, but it isn’t about healthcare. Indeed, it is an admission that Obamacare is also intended, as I wrote elsewhere, as a “cultural bulldozer.”
Back to the ruling: The Court found that it is uncertain whether the government will prevail on the compelling government interest, and if it does, whether it can be shown to be the least intrusive method of fulfilling that interest–another RFRA requirement–and since there is no real harm to maintaining the status quo, the injunction was issued pending trial
The Government will suffer some, but comparatively minimal harm if the injunction is granted…The harm in delaying the implementation of a statute that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs. The balance of harms tips strongly in Plaintiffs’ favor. A preliminary injunction is warranted.
This is not as strong a victory as the Hercules case, but it certainly takes religious freedom far more seriously than the O’Brien Court. The best way to ensure that the religious freedom of these business owners–and others when Obamacare is used to eventually impose a free abortion rule–is to kill Obamacare.

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