Corporations Don't Have Religious Liberty Right To Deny Workers Access To Birth Control, Americans United Tells Court

Corporations do not have a religious liberty right to opt out of providing health insurance plans that include contraceptive coverage, Americans United for Separation of Church and State has told a federal appeals court.

In a friend-of-the-court brief filed March 8, Americans United urged the 7th U.S. Circuit Court of Appeals to uphold the Obama administration's contraceptive mandate, which requires most businesses to provide workers with health insurance that includes no-cost birth control.

More than 40 lawsuits have been filed in opposition to the birth control mandate, with several for-profit corporations contending that they have a religious liberty right to refuse to comply with the mandate, a federal regulation issued as part of the Affordable Care Act.

Americans United and allied groups say that viewpoint is wrong.

"Corporations don't have a conscience, let alone one that's entitled to religious liberty rights," said the Rev. Barry W. Lynn, Americans United executive director. "Americans' access to birth control should not be left to the whims of business interests. Women's healthcare - and, in some cases, their very lives - are at stake."

The case, Korte v. Sebelius, concerns an Illinois-based construction firm called Korte & Luitjohan Contractors that works on a range of projects such as warehouses, schools, office buildings, hospitals and water treatment facilities. The company's Roman Catholic owners say they object to artificial contraceptives and argue that a 1993 federal law, the Religious Freedom Restoration Act (RFRA), exempts them from providing it to their employees, even indirectly.

Although the trial court denied the plaintiff's request for an injunction against the rules, in December, a 7th Circuit panel ruled 2-1 that, while the case was on appeal, the U.S. government cannot require Korte & Luitjohan to buy insurance coverage for contraceptives.

Americans United and its allies say the appeals court should uphold the trial court's ruling and allow the government to enforce the women's health mandate. In the brief, AU argues that the firm's owners don't suffer a substantial burden and should not be allowed to impose their religious beliefs on employees.

The brief also discusses the far-reaching harm that could come from allowing a for-profit employer to opt out of providing insurance that covers birth control due to a religious objection. If accepted, the rationale could allow employers to gain exemptions from an array of anti-discrimination laws dealing with employment and accommodations.

"Such a broad interpretation of RFRA," the brief asserts, "would conflict not only with congressional intent, but with the vision of the Founding Fathers, who recognized the need to cabin religious exemptions that impose substantial harms on third parties."

The brief in Korte v. Sebelius was drafted by Americans United Legal Director Ayesha N. Khan and Senior Litigation Counsel Gregory M. Lipper, with assistance from Legal Fellow Victoria Roth (admitted in Virginia only and supervised by Khan, a member of the D.C. Bar).

Other groups signing the brief were Women of Reform Judaism, the Hindu American Foundation, the Union for Reform Judaism and the Central Conference of American Rabbis.