When the U.S. Supreme Court ruled in favor of the Affordable Care Act’s constitutionality last year, it did not end all of the legal fights surrounding the law. On the contrary, opponents of contraception have been waging legal battles on multiple fronts, and have even had some success. When the U.S. Supreme Court ruled in favor of the Affordable Care Act’s constitutionality last year, it did not end all of the legal fights surrounding the law. On the contrary, opponents of contraception have been waging legal battles on multiple fronts, and have even had some success.



Birth-control opponents won an especially significant round this morning.

The D.C. Circuit Court has upheld a legal challenge to the provision of the Affordable Care Act (Obamacare) that mandates employer coverage of birth control, arguing that it “trammels” the expression of religious freedom. While the legal process over the issue isn’t final, the decision hands a huge political victory to conservative activists that have long made this argument.

The ruling is online here (pdf).

At issue is a lawsuit filed by the owners of an Ohio company named Freshway Foods. Brothers Phil and Frank Gilardi, who place anti-abortion messages on their delivery vehicles, are on board with providing health care coverage for their employees, but they oppose birth control and want to exclude contraception from the company’s insurance package.

Because the Affordable Care Act treats birth control as basic preventive care, the Gilardi brothers reached out to TV preacher Pat Roberson’s legal group, the American Center for Law and Justice, to file suit, which argued that the Gilardis’ religious beliefs apply to their for-profit business.

The D.C. Circuit found the argument persuasive – the Gilardi brothers can impose their religious beliefs on their employees through their private-sector business. It is, the court said, part of their First Amendment rights.

It is, to my eyes, a deeply bizarre ruling. At one point, one of the conservative judges – a George W. Bush appointee – goes so far as to describe contraception coverage as “compelled subsidization of a woman’s procreative practices.”

But equally important is how radical the D.C. Court’s perspective really is. A company’s owners are certainly entitled to their spiritual beliefs, but as we discussed in July, companies do not have their own theological perspectives. People can be religious; corporations can’t.

As the 3rd Circuit Court of Appeals explained over the summer in a related ruling, “[T]he law has long recognized the distinction between the owners of a corporation and the corporation itself. A holding to the contrary – that a for-profit corporation can engage in religious exercise – would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”

Today, the D.C. Circuit said the exact opposite.

The controversy now appears slated for the U.S. Supreme Court, with two appellate benches (the D.C. Circuit and the 10th Circuit) ruling against the contraception policy and another (3rd Circuit) ruling in support of the policy.

But in the meantime, keep two additional angles in mind. First, if conservative opponents of birth control prevail, the implications will be sweeping. Not only will this put a whole new twist on corporate personhood, but a private business’ owners would have the legal right to keep all kinds of health care – vaccines, treatment of sexually transmitted diseases, psychiatric care, mammograms, etc. – from their employees if the owners had a religious objection. That may sound insane, but it’s exactly what several conservative judges have already concluded, including the D.C. Circuit this morning.