Frank O’Brien (Finally) Gets His Day In Court


Francis J. Manion

October 29, 2013

4 min read




Back in March of 2012, St. Louis businessman, Frank O’Brien, was the first for-profit business owner to file a lawsuit challenging the HHS Mandate. The Mandate, a set of regulations adopted as part of ObamaCare, requires employers who provide healthcare plans to include in those plans coverage for things like the abortifacient morning-after pill and all other forms of contraceptives and sterilization. If they refuse, the employer gets fined $100 a day per employee. Do the arithmetic – this would put just about any business – especially a small, family-owned business like O’Brien’s – out of business in no time. O’Brien, a devout Catholic, believes that it is sinful for him to pay for or facilitate the use of those drugs and has always sought to exclude them from his company health plan. O’Brien has always tried to run his company, O’Brien Industrial Holdings, LLC, in a way that is consistent with his Catholic beliefs. The company’s motto, set forth on OIH’s website, is “To make our labor a pleasing offering to the Lord while enriching our families and society.” There is a statue of Jesus in the office lobby. OIH’s ownership pledges to tithe on the company’s earnings, mostly in the form of direct charitable assistance delivered anonymously through OIH’s St. Nicholas Fund.

Frank O’Brien is not interested in interfering with his employees' access to anything. As he put it in an interview with National Review Online’s Kathryn Lopez, “I don’t want to know what my employees do in the privacy of their bedrooms.  But when I am forced to pay for what they do there, I am brought into their bedroom.” As O’Brien sees it, if the HHS Mandate is allowed to stand – with its unprecedented governmental coercion of business owners' deeply held beliefs – then no Catholic, Christian, or indeed, any other kind or religious business owner is free to own a company in this country unless they are willing to check their faith at the factory gate or office door.

In October of 2012, the United States District Court for the Eastern District of Missouri dismissed O’Brien’s case. In an astoundingly flawed decision, the court essentially decided for Frank O’Brien that he didn’t understand his own religion and that it was up to the court to decide (and let him know) what really did or didn’t violate his beliefs. We filed an appeal the next day to the Eight Circuit court of appeals. That court granted an interim injunction against the enforcement of the Mandate – the first Court of Appeals to enjoin the Mandate in fact – while O’Brien’s appeal of the dismissal wound its way through the long appeals process.

Yesterday, October 24th, I had the privilege of arguing Frank O’Brien’s appeal in the United States Court of Appeals in St. Paul, Minnesota. Before a three-judge panel, we emphasized that the Religious Freedom Restoration Act and the First Amendment’s guarantee of the Free Exercise of Religion forbid the government from imposing its own theological judgments on people like Frank O’Brien. We attacked the lower court’s decision as profoundly erroneous on a number of legal grounds. And while it’s never entirely possible to predict the outcome of an appeal from what happens at oral argument, we are cautiously optimistic that a majority of the panel will recognize the need to uphold religious liberty in these circumstances. If not, the Supreme Court of the United States is almost certain to weigh in and resolve the issue, either in O’Brien’s case or in one of the other nearly 40 cases (7 of them being litigated by the ACLJ ) filed by business owners around the country who, following Frank O’Brien’s courageous lead, have also challenged the Obama Administration’s arrogant attack on our first liberty.