Last Friday, District Court Judge Carol Jackson dismissed a case filed by O’Brien Industrial Holdings and Frank O’Brien (the owner) against the HHS rule requiring health insurance coverage of birth control with no co-pay. In a decision that is worthy of reading a couple of times over (PDF), Judge Jackson explained in careful detail why, in fact, the HHS rule does not violate the statutory or constitutional claims made by O’Brien and his for-profit mining company (in which he claimed that the rule violated the company’s and his religious liberty).

There are some great lines in the decision. One of my favorites is:

The rule does not “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…”

Such a line says what we have been saying all along… the birth control rule does not violate religious freedom.

Equally satisfying for those of us who have been following this issue very carefully is that the Judge picked up on the point that “[a]lready, OIH and Frank O’Brien pay salaries to their employees—money the employees may use to purchase contraceptives…” This point is something I often raise when debating the issue. What people often forget (or don’t know) is that women earn their employer-based health insurance – it is part of an employee’s salary package. In addition, many women also have some of their salary deducted to pay a share of the premiums. So when people react to the HHS rule controversy with the argument that the female employee should pay for her own birth control, they don’t get that that is exactly what she is doing. Her health insurance is hers, she earns it. And how she uses that health insurance should be between her and her health care provider.

What is particularly frustrating about the argument that women should pay for their birth control is that people don’t make the same claims about other health care services that are similarly covered under an employee’s health insurance plan. No one says: ‘she should pay for her child’s vaccines out of pocket or he should pay for his heart surgery out of pocket.’ That is the whole point of health insurance: we have health insurance to cover our health care needs, whatever they may be.

But when we get to birth control, suddenly she has to pay out of pocket for it (with her salary paid by the same employer ironically enough…), as if she is uninsured. No one questions whether vaccines or blood transfers should be covered under an employee’s health insurance plan because they think of it has health care. So what’s the difference between having your health insurance cover birth control versus your heartburn medicine?

Could part of the answer be that when people think of birth control they are really thinking of other issues like sex, power, women’s reproductive lives, religion…? Do all of these other entangling issues make it impossible for people to see what birth control actually is for many women’s daily lives: i.e. healthcare?