How is declining to subsidize the *prevention* of pregnancy a sign of
discrimination *against* pregnancy?
> Date: Mon, 17 Aug 2009 16:31:29 -0400
> From: masin...@nova.edu
> To: religionlaw@lists.ucla.edu
> Subject: Re: EEOC says Catholic College Discriminated by Removing
> Contraceptive
>
> Contraceptives prevent pregnancy, and only women get pregnant.
> Denying contraceptive coverage to men does not expose men to
> pregnancy, but denying coverage to women does expose women to
> pregnancy. Cpngress enacted the PDA because pregnancy uniquely
> burdens women in the workplace. As I noted earlier, that still leaves
> the question of whether preventing the burden of pregnancy falls
> within the intended scope of the PDA, but answering that question does
> not hinge whether men can use contraceptives, prescription or otherwise.
>
> 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 Perry Dane <d...@crab.rutgers.edu>:
>
> > This point might have been made by someone else already, but
> > I'll venture ahead anyway:
> >
> > I'm not sure we need to accept the premise that Belmont Abbey
> > is guilty of sex discrimination here. The EEOC determination found
> > that "By denying prescription contraception drugs, Respondent (the
> > college) is discriminating based on gender because only females take
> > oral prescription contraceptives" "By denying coverage, men are not
> > affected, only women." The obvious analogy implicit here is to the
> > sort of pregnancy discrimination at issue in Gilbert, which Congress
> > has (rightly) determined to be a form of sex discrimination.
> >
> > But this case is different. Belmont Abbey can credibly argue
> > that its policy would be to refuse to pay for any contraceptive,
> > regardless of whether the contraceptive is being taken by men or women.
> > That this policy affects men and women is not the product of biology,
> > as it was in Gilbert, but of independent policy decisions made by other
> > institutions to treat women's contraceptives, but not men's
> > contraceptives, as prescription items.
> >
> > To put it another way: When General Electric argued in the
> > Gilbert case that it was discriminating against pregnancy, not against
> > women, that would rightly strike most observers as a laughable, or at
> > least unduly formalistic, proposition. But when Belmont Abbey argues
> > that it is discriminating against contraception, not against women,
> > that seems to me to be neither laughable nor formalistic.
> >
> > Consider this analogy: Imagine a pacifist landlord who refuses
> > to rent to "combat soldiers." Is that a form of discrimination against
> > men merely because another institution (the U.S. Congress) has made an
> > independent policy decision not to allow women to be combat soldiers?
> > (For purposes of the hypo, put aside the fact that many women do de
> > facto serve in combat.)
> >
> > Or imagine a landlord right next to a single-sex college who
> > refuses to rent to "college students." Is that a form of sex
> > discrimination merely because the college has, of its own accord and as
> > its right, chosen to be single-sex?
> >
> > Now, these situations might, I guess, set up some sort of
> > "disparate impact" claim, but that seems to me to require a more
> > complicated analysis; in Bemont Abbey's case, it might leave more room
> > for the operation of religious conscience or RFRA.
> >
> > Perry
> >
> >
> >
> > *******************************************************
> > Perry Dane
> > Professor of Law
> >
> > Rutgers University
> > School of Law -- Camden
> > 217 North Fifth Street
> > Camden, NJ 08102
> >
> > d...@crab.rutgers.edu
> > Bio: www.camlaw.rutgers.edu/bio/925/
> > SSRN Author page: www.ssrn.com/author=48596
> > Academia.edu page: http://rutgers.academia.edu/PerryDane
> >
> > Work: (856) 225-6004
> > Fax: (856) 969-7924
> > Home: (610) 896-5702
> > *******************************************************
> >
> >
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>
>
>
>
>
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