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Sun Sep 30, 2012, 06:22 PM


O’Brien v. DHHS–An Important Religious Liberty Case

September 30, 2012, 4:45 pm
Posted by Cathleen Kaveny

A district court judge dismissed the plaintiff’s case on the merits–on the grounds that the mandate did not impose a substantial burden on the plaintiff’s religious liberty.

Plaintiffs allege that the preventive services coverage regulations impose a similar ultimatum, and therefore substantially burden their free exercise of religion “by coercing Plaintiffs to choose between conducting their business in accordance with their religious beliefs or paying substantial penalties to the government.” Am. Compl. ¶ 40 [Doc. #19]. However, the challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.

It seems to me the key issue is whether the Religious Freedom Restoration Act has a jurisprudence that expands the rights protected beyond what was in place the day before Employment Division v. Smith was decided. I don’t think that this is a sound reading of the statute; I get the sense that some religious liberty scholars think otherwise. I think that, for example, is what my difference with Michael Moreland boiled down to be.

O’Brien doesn’t read RFRA as having a jurisprudence that expands beyond its original purpose of undoing Smith.


The decision:


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Response to rug (Original post)

Sun Sep 30, 2012, 06:24 PM

1. Lay translation please?

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Response to cbayer (Reply #1)

Sun Sep 30, 2012, 07:00 PM

2. It is a pretty comprehensive decision but the blog focuses on the Religious Freedom Restoration Act.


That was a republican inspired bill enacted about twent years ago. http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act

This is the case that was brought recently, and garnered a lot of attention, by the owner of a small corporation, alleging the contraceptive acess provisions (the "mandate" of the Affordable Care Act violated his rights inder the RFRA and the First Amendment since he opposed contraception on religious grounds.

The District Court rejected all of his arguments and dismissed the case Friday, essentially finding that a requirement for an employer to indirectly pay for contraception access is not an unconstitutional intrusion into his constitutional freedom of religion, primarily because the required action was too remote from a direct governmental mandate directed squarely against his beliefs.

As to the RFRA, the court held that since the corporation itself, which paid for the insurance, cannot practice a religion, the RFRA therefore did not apply. (I wish a court would find a corporation cannot exercise free speech.)

Essentially, the court held the RFRA does not extend to corporations. The blogger disagrees.

I think the court got it right on the RFRA statutory grounds but I'm not too sure about on the constitutional grounds. I don't think attenuation is the best standard to use on conscience grounds. But I'll have to read it again more closely.

In any event, there should be a lot of hubbub going on next week over this decision.

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Response to rug (Reply #2)

Sun Sep 30, 2012, 07:13 PM

3. Thanks so much for this. Will watch for more follow up.

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Response to rug (Original post)

Sun Sep 30, 2012, 07:54 PM

4. "Religious Liberty"

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Response to 2ndAmForComputers (Reply #4)

Sun Sep 30, 2012, 08:09 PM

5. Kevin Kline has a quote for you.


"It was all completely incomprehensible to me. I was fearful of the language. You had to look up every third word."

I understand it's easier to attempt snark than read a decision that will frame an important debate, but do try.

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Response to rug (Original post)

Tue Nov 13, 2012, 10:35 PM

6. I was trying to find a reasonable, rational discussion of the "HHS mandate"

All I could find were endless right-wing blogs and articles on the subject. I knew if I included "democraticunderground.com" in my search, I'd find something.

To be honest, I haven't been following this specific topic much at all.

However, I just saw a friend post her outrage that Hobby Lobby (which I didn't realize is a Christian company) failed in the attempt to oppose the HHS mandate. That led me here.

For anyone following the subject, is there any wiggle room regarding this issue, for private employers who proclaim it goes against their religious beliefs?

I freely admit that I'm ignorant about this issue. Rug, you seem to have an in-depth understanding of it.

It seems it's a very slippery slope when employers are able to pick and choose what types of coverage they'll offer employees. Is it specifically an opposition to oral contraceptives, or are there other prescriptions and procedures they're upset about being covered?


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Response to OneGrassRoot (Reply #6)

Tue Nov 13, 2012, 11:10 PM

7. Did the judge issue a decision in the Hobby Lobby case? Last I heard he held a hearing November 1.


They're swarming over the HHS rule with all sorts of arguments.

The Hobby Lobby case has different legal theory from the one in the OP. The O'Brien case held that paying premiums for a policy that allows the insured worker to purchase contraceptives is too remote to be considered a restriction on religion.

Hobby Lobby is different in that 1) it is self-insured so it directly, not remotely, pays for contraceptive services. {Hoobby Lobby does not object to and, in fact, pays for contraception) and 2) its lawsuit is directed specifically at two contraceptive medicines, the so-called morning-after pill and week-after pill, both of which, per the lawsuit, prevent a fertilized egg from implanting and therefore are abortifacients. The Government, stupidly in my opinion, is arguing that's not how it works.

So the suit contends the business (i.e., the business owner) is compelled directly to pay for an abortion to which he objects on religious grounds.

I'd be interested in seeing the decision because that is a more direct challenge to the rule. Still, I think the O'Brien holding that a corporation does not have freedom of religion will decide the issue. Now, if the plaintiff were an unincorporated sole proprietor, there might be a different outcome.

I've been following this but I'm not really knowledgeable of all the ins and outs of the various lawsuits.

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Response to rug (Reply #7)

Wed Nov 14, 2012, 05:33 AM

8. Unfortunately...

a cursory search only turns up conservative links, most based on this one:


No, it doesn't look like a decision has come down after all.

So you're saying the administration is arguing that the morning-after and week-after pills aren't abortifacients?

Thanks, rug.

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Response to OneGrassRoot (Reply #8)

Wed Nov 14, 2012, 09:34 AM

9. I haven't read their brief but I believe their argument is that they are contraceptives primarily


and either that preventing a zygote from implanting is not an abortion or that it is secondary to the primary purpose of conception.

I think both sides are better served by arguing legal principles rather than biology. The question of whether a fertilized egg has a soul and is therefore human and is therefore entitled to legal protection is ultimately a matter of religious belief, regardless of the biology of implantation. These cases cannot be decided on the merits of the religious belief but on the question of whether this rule impacts that belief and, if so, whether it is an unconstitutional impact.

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