Note that, doctrinally speaking at least, there is a difference between contraceptive coverage and abortion coverage. As I said before, courts are going both ways on whether the PDA requires private employers to provide contraception benefits. (The big hold up seems to be that the PDA, as written, is about providing benefits for pregnancy and childbirth * i.e., the affirmative decision to have a child. Contraception is intimately related to those things * being the decision not to have a child * but in some ways, it is the opposite of them. Not knowing what to do with that, courts have understandably gone both ways.) Yet the PDA treats abortion differently. A provision of the PDA specifically empowers employers to exclude certain types of abortions from coverage: "This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion." 42 U.S.C. s 2000e(k). Under this language, employers can exclude entirely elective abortions from coverage. But there is a negative inference that they may not be able to exclude abortions in certain contexts * when there are medical complications, when the life of the mother is in danger. Finding this language insufficient, the National Conference of Catholic Bishops facially challenged the PDA soon after its enactment. They had several arguments, one of which was that the PDA violated the First Amendment by perhaps requiring the Church to provide benefits for abortions in situations that the Church would not be able to verify as legitimate. The case was dismissed on standing grounds; the Court said that the Bishops had not shown sufficient threat of enforcement. National Conference of Catholic Bishops v. Smith, 653 F.2d 535 (D.C. Cir. 1981).
______________________ Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 >>> masin...@nova.edu 8/15/2009 10:37 PM >>> If Belmont Abbey stops providing health care coverage to its employees, it will be because it chose to stop providing it, not because it was forced to do so. If the administrators of the college believe that it is preferable to leave all employees uninsured to prevent the possibility that one of them might purchase birth control pills subsidized by a health insurance plan, then it really doesn't matter whether its motivation is rooted in religious doctrine or the belief that birth control disrupts evolution; either way the administrators make a deliberate choice. That such a choice is one an employer can make and impose on its employees is part of what sets health care in the United States apart from most of the developed world. I leave to a more appropriate thread the discussion of whether that's a bug or a feature. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu 954.262.3835 (fax) Quoting Will Esser <willes...@yahoo.com>: > My understanding is that college administration discovered (after a > change in insurance providers) that the new insurance policy covered > abortion, sterilization, and contraception. Since all three are > contrary to Catholic teaching, the college administration > immediately requested its private health insurer to eliminate > coverage for these items. I'm told that North Carolina law has a > specific state exemption which permits a religious employer to > provide health insurance which does not cover these items, so as a > matter of NC state law, the college was on firm ground. In fact, > but for the change in health insurance providers, I do not believe > these items would have ever been covered to begin with. > > (And of course, there is no prohibition on private individuals > paying for excluded services on their own; it's just a question of > whether a religious employer should be required to pay for services > or items which it believes are morally objectionable). > > At the end of the day, it really creates an interesting dynamic > because there is no federal or state law which requires Belmont > Abbey to offer priavte health insurance coverage. If there is a > holding that Belmont Abbey cannot offer health insurance coverage > without covering abortion, sterilization and contraception, then > Belmont Abbey will simply be forced to stop offering health > insurance coverage for its employees (a result which would more > adversely affect staff members, than the faculty who brought the > challenge in the first place). > > Will > > > > > Will Esser --- Ad Majorem Dei Gloriam > Charlotte, North Carolina > > ******************** > We can easily forgive a child who is afraid of the dark; > the real tragedy is when men are afraid of the light. > Plato (428-345 B.C.) > ******************** > > --- On Sat, 8/15/09, Michael R. Masinter <masin...@nova.edu> wrote: > > > From: Michael R. Masinter <masin...@nova.edu> > Subject: Re: EEOC says Catholic College Discriminated by Removing > Contraceptive Coverage from Health Insurance > To: religionlaw@lists.ucla.edu > Date: Saturday, August 15, 2009, 5:51 PM > > > The PDA makes denial of health insurance benefits relating to > pregnancy sex discrimination without regard to whether an employer > denies men coverage for some other condition that affects only men. > Denying coverage for a prescription drug that prevents pregnancy, a > risk to which only women are exposed, may therefore be sex > discrimination under the PDA even if men are not denied coverage for > vasectomies. Whether the cost of prevention of pregnancy, as > distinct from the health related cost of pregnancy, counts as one of > the risks and burdens associated with pregnancy the PDA was intended > to relieve women from bearing under employer provided health > insurance and other employee benefit programs might better frame the > question a court ultimately will have to answer. > > Michael R. Masinter 3305 College Avenue > Professor of Law Fort Lauderdale, FL 33314 > Nova Southeastern University 954.262.6151 (voice) > masin...@nova.edu 954.262.3835 (fax) > > > > Quoting "Vance R. Koven" <vrko...@gmail.com>: > >> Whatever else may be right or wrong with Gilbert or the statute, Griswold >> was a constitutional claim based on the flat prohibiting by legislation of a >> form of birth control for women, whereas the EEOC finding in Belmont Abbey >> is a matter of what the college will fund as part of its private health >> insurance. Presumably women are still free to obtain contraception on their >> own nickel. >> Have we ascertained that the Belmont Abbey insurance policy, and the >> college's internal policy, permitted men to obtain condoms and/or more >> medically-oriented forms of birth control (e.g. vasectomies, spermicides)? >> If so, then there's a live sex-discrimination issue. If not, then the EEOC >> decision may be subject to question. >> >> Vance >> >> On Sat, Aug 15, 2009 at 5:10 PM, Steven Jamar <stevenja...@gmail.com> wrote: >> >>> I'm not sure how paul arrives at his characterization of my response to an >>> inquiry of another in which I sketch a possible way a court could go wrong. >>> >>> Nonetheless, it seems to me that even though Gilbert was overturned by >>> legislation, the legislation did not in fact reach the illogic of the >>> court's reasoning, but rather the outcome of that reasoning. >>> While I think that a court that would reason as I hypothesized one might >>> would be wrong in doing so in light of the dialogue between the Court and >>> Congress(see boumediene), I fear I have seen such toturing of laws often >>> enough to not consider such error to beyond the realm of possibility. >>> >>> I guess I don't quite see how a statute based claim with EP overtones would >>> impact a constitutional liberty-based privacy claim, though at times we do >>> cross those sorts of boundaries. >>> >>> >>> Stev >>> >>> Sent from Steve Jamar's iPhone >>> >>> >>> On Aug 15, 2009, at 1:57 PM, Paul Finkelman <paul.finkel...@yahoo.com> >>> wrote: >>> >>> >>>> _______________________________________________ >>> To post, send message to Religionlaw@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed as >>> private. Anyone can subscribe to the list and read messages that are >>> posted; people can read the Web archives; and list members can (rightly or >>> wrongly) forward the messages to others. >>> >> >> >> >> -- >> Vance R. Koven >> Boston, MA USA >> vrko...@world.std.com >> > > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed > as private. Anyone can subscribe to the list and read messages that > are posted; people can read the Web archives; and list members can > (rightly or wrongly) forward the messages to others. > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
