7th Circuit Enjoins Contraceptive Coverage Mandate

-Submitted by David Drumm (Nal), Guest Blogger

7th circuitIn Grote v. Sebelius, (7th Cir., Jan. 30, 2013), a 2-1 decision by the U.S. 7th Circuit Court of Appeals granted an an injunction, pending appeal, where the defendants are enjoined from enforcing the contraception mandate against the Grote Family and Grote Industries. Grote Industries is a privately held, family‐run business headquartered in Madison, Indiana. Members of the Grote Family are Catholic and operate their business according to the “precepts of their faith, including the Catholic Church’s teachings regarding the moral wrongfulness of abortifacient drugs, contraception, and sterilization.”

It is the well-reasoned dissent by Circuit Judge Ilana Rovner that I find most compelling.

Grote Industries is a for-profit business that manufactures vehicle safety and lighting systems and employs 1148 people at various locations. Circuit Judge Rovner notes that Grote Industries has “stated no religious goals as part of its mission, it does not select its employees, vendors, or customers on the basis of their religious beliefs, and it does not require its employees to conform their behavior to any particular religious precepts.” Circuit Judge Rovner “cannot imagine that the company, as distinct from the Grotes, has any religious interests or rights to assert here.”

Circuit Judge Rovner points out that it is the company, rather than the owners, that is obligated to provide the contraceptive coverage. The company has a legal identity that is different from the owners. Although the Grote Industries’ health plan is self-funded, lacking the buffer of an insurance company, the money that funds the health plan come from the company’s bank account, not the owners. Circuit Judge Rovner writes that the “Grotes are not at liberty to treat the company’s bank accounts as their own.”

Circuit Judge Rovner also cites the Supreme Court’s 9-0 decision in United States v. Lee (1982), that states:

When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.

Lee involved a member of the Old Order Amish who failed to withhold social security taxes from his employees or to pay the employer’s share of such taxes because he believed that payment of the taxes and receipt of benefits would violate the Amish faith. Chief Justice Burger wrote:

Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees. The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress explicitly provides otherwise.

Circuit Judge Rovner lists other business activities, and their court precedence, that may conflict with the owners personal beliefs, including a landlord required to rent housing to an unmarried couple, a church‐affiliated school required to retain a schoolteacher after she gives birth to a child, and the obligation to provide fertility services to a lesbian couple.

The Grotes are not compelled to personally engaged in any activity they disapprove of, are not compelled to approve of contraceptive use, and are not refrained from discouraging the use of of contraception by others.

When an employee uses funds from their paycheck (or money from a healthcare reimbursement account) to purchase contraceptives, does this burden the Grotes’ religious rights? Some argue that once the money is transferred to the employee, any connection to the employer is severed. Circuit Judge Rovner asks us to consider that health insurance is an element of employee compensation.

H/T: Howard Friedman.

23 thoughts on “7th Circuit Enjoins Contraceptive Coverage Mandate”

  1. Tony C: Hardly. The only thing you’ve demonstrated, is that people aren’t willing to pay the price to get the thing done, not that they don’t want it done. If the economic elite are able to destroy the entire economy (and also to hold it hostage), it’s not surprising that the calculus is in favor of inaction.

  2. Hubert, yes they both are. Unfortunately because they are components of women’s health care they are looked upon differently that the fun drug men take Viagra. I object to paying for Viagra because it is used by many as a recreational drug to commit adultery which is against my religion. Can I sue to stop insurance coverage of Viagra and testosterone therapy? If not, why not?

  3. Jim Bradley: On the contrary, I am not hard-pressed at all. How many incumbents were thrown out for voting in favor of those actions? We do not rule by popular vote, so whether a poll of people “wanted” those actions or would have voted for those actions isn’t what matters. The question is did they still want their Representative or Senator that supported those actions, and the answer is an overwhelming “yes.” Overwhelmingly, they might have grumbled, but did not change their vote.

    As I said, that is silent assent; they did not throw them out, therefore the vast majority agreed that those actions were not bad enough, in their mind, to change their vote and throw the bum out, or clamor for and support a primary challenger (somebody somewhere is always willing), or anything else.

  4. Tony C: I think you’d be hard pressed to demonstrate that the “people” wanted the banker bailout or an invasion of Iraq, etc. etc.

  5. I absolutely agree that it’s compensation. If instead of the employer administering the plan each person was paid an equivalent amount to then buy the health insurance of their choice then I don’t think there’d be an issue. Why do companies get to buy the horse and hold the reins when they don’t even ride?

  6. Jim Bradley: People that form companies, and not just corporations, and whether privately owned or publicly owned, may only do so in accordance with the rules of their society. This has been true since the dawn of man; but in order to increase fairness, we have advanced from the ancient practice of verbal rules and common knowledge and written down the rules and called them laws, and we have defined what we believe are the fair procedures for forming new laws and called that the Constitution.

    We are not subject to the “government’s religion,” the government still operates as the majority of voters have empowered it to act. I think you are making the mistake of thinking of the government is an entity separate from the people, and it isn’t. The truth is that not enough people object to their acts to vote them out of office. That is a silent assent to their acts, including health care, which means the Grotes are trying to act against the agreement of our society.

    One of those agreements is that they cannot impose their religion upon others. That is not the “government’s religion,” that is the societal agreement, you are free to believe in any magic you choose, but you are not free to force that belief upon others against their will.

  7. Once the company provides pay and benefits to the employee it is the employees property and they can do as they see fit with it. The company cannot tell an employee not to use their pay a certain way, it is the same with their health care benefit. One is money, the other is indemnification of expense.

    Plus, look at all the cost associated with fighting this battle. How does this affect the bottom line? A great waste. From my point of view I have enough in managing my store/business that takes my time, and money and I have no interest in running the lives of my employees. I don’t want that headache much less becoming a dictator to them. As long as they don’t do something that hurts my business, such as them getting an alcohol related conviction that might remove them from employment in my industry I don’t care what they do.

  8. I think there’s another problem here in that once a person enters into commercial enterprise via a corporation, they effectively sign away their rights to private property and are forced by law into accepting the government’s “religion” … in essence they cannot act their own conscience. Imagine such a situation with a government like that of communist Russia or the 1970s China. The centralization of power and mandated activities contrary to one’s held beliefs seems to be usurpation of the free activity of individuals – while on the other hand this also points out the problem inherent in private property: those that own substantial private property, make the laws. The line-drawing is very problematic. I find the issue of “government administered justice” to be more and more a problem as we then are subservient to the government itself with all of it’s special interest groups (like the trillions that were stolen from the people and given to the bankers). It is we that are the people, and each person should be able to decide issues according to his or her conscience and suffer the rewards and consequences when interacting with other people. Really we are so far from freedom at this point I believe we are in grave peril. We need immediately to return to money which is not in control of the government and property which is outside the control of government. Over time, the rich will lose their wealth. Consider how substantially things would have changed without the banker bailout if the government insured deposits only and let the banking system go down – just how many people the market would have “fired” … perhaps the entire political ruling class. That is what sound money and private property do.

  9. IF, religious paranoia is the problem then every congressman having their own individual personal beliefs, is put into public laws, all claiming their individual beliefs about doctrines. the word of GOD has been changed by those that wrote the doctrines. in the united states all you have to do is look for the copywriters claim …. did the politicians do the same three thousand years ago? they did have a working society in the time of adam and eve, and even cave men have proven they did functional laws also. so why did GOD get involved. for instance, phrases from scriptures about calling people a name and telling them to cut off all that defiles them. they turned it into part of their religion when it was meant to be an insult.
    … a house ( I get a kick out of that BIBLE phrase) divided can not …
    … and every house is claiming that I am going to save every soul that ever existed. if that is true then the terrorists goes to HEAVEN every time they blow the hell out of a bunch of people. according to the Ten Commandments, which is said would be in question in these times, at least one in the bunch got the part about honoring god only CORRECT, And therefore adolph hitler would be in heaven according to all religious teachings.

    case and point: every religion tells you no matter what you do your going to HEAVEN, and a non believer doesn’t have a prayer because they don’t pray, but they do wonder. so the problem is who is dealing with reality…,
    who is fantasy land when in a time you need to be logical! which laws are wrong and how difficult is it to correct them?

    what does the nick of time mean in THE BIBLE when your only three seconds from hell, and seven seconds from purgatory when you die. you have to admit that every body wonders what people will think about you when they are at your funeral. well, l’ll tell you the truth. they think real hard about the right things to say to someone, while no matter what their religious beliefs are, they wonder where the hell you went.



  10. This injunction is during the pendency of the appeal. The case will end up going to the full 7th Circuit and not just this panel.
    From what I read, I do not see any of the employees participating as parties to the litigation. It seems that the government requirement is non faith based. The requirement to provide the full panoply of insured options, health care options, is not denying or requiring, anyone to take an option. The company would not chose the option of say having the leg removed if it was gangrene. It is the employee’s decision.

    The Court should decide that no person is being required to have an abortion, to take a pill, to use a condom, to eat twice on Sunday, or pork on Monday. It is the person’s choice. On the other hand, to allow the company to impose its reliigion on a secular employee is establishing a religion. Who has standing to assert the religion of the employee?

    Can the Grote Family refuse to pay taxes because their tax dollars go to the War in Afghanistan and they are opposed to war as a matter of religion? Can the Grote Family enjoin the government from imposing a safety requirement on their product because Good Catolics are not so dumb as to get injured by an unsafe product.

    The Grote Family has a lot of Catolic baggage. Do they attend a church in which pedophile priests are in attendance or who say Mass? Have the Grotes ever used condoms? If they have breached their faith should they be estopped to impose it on their workers.

    I am an athiest, I want all my workers to be required to work on Sunday or Saturday. I dont want to pay unemployment contributions for non Athiests.

    If someone clues me in and describes the products made by the Grote Family and its industries then I can boycott. I dont need no catolic products on my car. They come with too many strings. Too many catolic babies will be born if I support the Grotes.

  11. If the Groves have ever violated the precepts of their Faith, then they should be estopped to deny their employees some right in opposite to the precept of their faith. Its faith based not fried chicken. So if Groves kid got an abortion then the Groves cant deny their employees an abortion. The Groves need to be questioned on all articles of Faith. Then, when it is found that they have breaches of fatih and cant keep on their breeches, stick the estoppel argument to them. And while you are at it employees, if you quit it is not a voluntary firing. You should be enttiled to workers unemployment benefits. If the state denies benefits because of your faith, and your faith is indisagreement with the Grove’s faith, then the state is siding with the Catolic version of faith and violating the Establishment Clause. But all that aside, the right of privacy should be the issue that an employee takes to the Courts. Ninth Amendment. If they take the Ninth they dont get stuck on First.

  12. I say the Grote claims should be subject to an investigation to see if the really follow Christ’s teachings.. While normally such an investigation would be looked upon as outside the normal limits of discovery, once we start granting exemptions from generally applicable laws because the claim the run their business according to certain religios precepts I say they have opened the door. I want to know if their claims are true not just that they claim the are. Additionally, they should not be allowed to pick and chose among beliefs.

    This is a dangerous road. Are we now to assume: 1. Corporations have religious beliefs; 2. Any Catholic shareholder in any corporation could raise this complaint ; 3. The Catholic Church owns a lot of stock. Can they now argue that every corporation in which they have an interest must also be grated this exemption, and 4. Will this exemption now apply to other generally applicable laws like anti discrimination in particular women in the work place or labor laws or minimum wage laws. Remember there are many religions and many beliefs if the government is now going to grant exemptions to Catholics will it also grant exemptions to other religions? A dangerous road indeed.

    By the way this has nothing to do with faith. It is about power and money. Claims of a horror of supporting an immoral practice should have caused this family to flee the church long ago.

  13. Excellent nal…..

    It is a contract that the make with the state in order to have the safety nets that corporations have…..

  14. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.” – Supreme Court

    When an employee uses funds from their paycheck (or money from a healthcare reimbursement account) to purchase contraceptives, does this burden the Grotes’ religious rights? Some argue that once the money is transferred to the employee, any connection to the employer is severed. Circuit Judge Rovner asks us to consider that health insurance is an element of employee compensation. – Nal

    I have to say that it seems like what we have here is sort of a religious paranoia.

    These employers in the family are really reaching way out there to protect themselves from their idea of sin aren’t they?

    It reminds me of nations “protecting themselves” by invading and occupying nations on the other side of the globe that pose no serious threat to them.

    It is incredible that this is fundamental military religious doctrine and practice too.

    Grote Industries does a lot of work for the military.

    Military publications have stated that health care is their number one enemy:

    The U.S. military keeps searching the horizon for a peer competitor, the challenger that must be taken seriously. Is it China? What about an oil rich and resurgent Russia?

    But the threat that is most likely to hobble U.S. military capabilities is not a peer competitor, rather it is health care.

    (Your Health Is Their Number 1 Enemy?!, quoting National Defense Magazine). Who knows the religious paranoia social virus may originate within the military world where the Establishment Clause seems to have no jurisdiction.

  15. But, but – corporations are people! In this instance, the corporation-person attends Catholic mass – and the people’s freedom of religion shall not be abridged!

    Recent Supreme Court corporate personhood rulings make such ridiculous leaps of logic seem quite reasonable, no?

  16. What if your boss is a Christian Scientist? Would that mean the mandate for health care only cover prayer & the laying on of hands? Would a company owned by a Jehovah Witness be exempt from paying for blood transfusions? If I, as an employer, had a religious objection to root canals could I refuse dental coverage?

    This is insanity. One does not base medical coverage for others based on their idea of morality. Nor should the state come between a doctor and patient when it comes to care decisions. If the doctor determines birth control is the correct course and the patient requests it it should not be the government nor the employer who says no.

    They are not objecting to people imposing their morality on them but are trying to impose their personal morality on others.

  17. I agree with Rovner. If they want to run a religious organization they should take their money and become founders of a church. The Grote family sounds like petty tyrants in a kind of company I hate with a passion (so much so I refused a contract offered by one), where the patriarchs (or matriarchs) pretend that the employees are their children. (But only the side of that relationship that benefits them, of course, they will still fire some of their “kids” if sales are slow.)

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