Back in March, I argued that employers don’t have any moral right to prevent workers from using employer-provided insurance to buy birth control, any more than employers have the right to prevent workers from using employer-provided paychecks to buy birth control.
My view was met in comments with a degree of skepticism.
So forgive me if I’m pleased to note that Judge Carol Jackson, a H.W. Bush-appointee, said much the same thing in a ruling earlier this month (pdf link, emphasis added by me).
The health care plan will offend plaintiffs’ religious beliefs only if an employee (or covered family member) makes an independent decision to use the plan to cover counseling related to or the purchase of contraceptives. Already, [plaintiffs] pay salaries to their employees — money the employees may use to purchase contraceptives or to contribute to a religious organization. By comparison, the contribution to a health care plan has no more than a de minimus impact on the plaintiff’s religious beliefs than paying salaries and other benefits to employees.
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.
[The Religious Freedom Restoration Act] is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.
Because this is about female sexuality and there’s all these sex-phobic and misogynist arguments being thrown around, the basic issue has gotten somewhat obscured, which is that your boss is not actually your master. [...] If the door is opened to allowing employers to control how you use your compensation after you’ve earned it, god only knows what other kinds of restrictions on how you spend your money they’re going to start angling for.
I think this is one of the basic differences between conservatives (including, alas, most libertarians) and progressives. To paint in broad strokes: When conservatives talk about protecting liberty, they want to protect the bosses from the government; when progressives talk about protecting liberty, we want to protect the workers from the bosses.
Of course, this ruling is not the end of the matter; I’m sure eventually the Supreme Court will decide. Given the conservative majority’s dislike of rights for workers, I won’t be surprised if Judge Jackson is eventually overturned. One more reason to hope Obama wins reelection.