Is there another way around this? As I understand it, under the Affordable Care
Act by 2014 every state must have a health benefits exchange on which
individuals without coverage from their employers can purchase their own
policies. Can't institutions with objections to federal regulations on the
insurance they provide instead just end coverage, increase employees' salaries
by the cost of the coverage they had been getting, and remit employees to buy
policies on the exchanges? I assume there are some tax disadvantages to
purchasing a policy in this way, but is there enough of a disadvantage to
preclude this as a solution? What am I missing?
Howard Friedman
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu on behalf of Douglas Laycock
Sent: Mon 2/13/2012 11:54 AM
To: 'Mae Kuykendall'; 'Ira Lupu'; 'Marc DeGirolami'
Cc: 'Law & Religion issues for Law Academics'; 'Con Law Prof list'
Subject: RE: Contraceptives and gender discrimination
The wars of religion were very much about the locus of religious authority. Men
fought for, and men and women died for, the right to have a hierarchical church
with teaching authority at the top, or a congregational church with ultimate
authority in the lay people or in individual conscience, or a presbyterial
church with authority in bodies composed partly of clergy and party of elected
representatives.
Individual Catholics of course determine their own religious position for RFRA
purposes, but for religious institutions, the duly constituted religious
authorities decide. In Catholicism, those authorities are the bishops, and the
right to have a church in which bishops decide is very much a part of the
religious liberty guaranteed by the Religion Clauses.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: conlawprof-boun...@lists.ucla.edu
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Mae Kuykendall
Sent: Monday, February 13, 2012 10:32 AM
To: Ira Lupu; Marc DeGirolami
Cc: Law & Religion issues for Law Academics; Con Law Prof list
Subject: Re: Contraceptives and gender discrimination
This explanation of the bishops' view from the NYT seems revealing of the
actual goal: "The bishops will also renew their call for lawmakers to pass the
"Respect for Rights of Conscience Act," which would exempt both insurance
providers and purchasers - and not just those who are religiously affiliated -
from any mandate to cover items or services that is contrary to either's
'religious beliefs or moral convictions.'" (The grammar belongs to the NYT,
though I changed one typo.)
The demand is pretty radical stuff, unless I'm missing something. It looks
like an attack on contraception and a demand to be exempt from the general
application of law--for anyone who provides medical care.
Finally, taking so much government money seems to involve religious groups in
potential issues about what they really believe. Since a majority of Catholics
supported the original proposal (so polls say) and 98% use birth control, the
question arises of who gets to say what the beliefs are. With the hierarchy, I
am unable to credit the extent of the claim as being non-political. Hence, I
see a rather wooden claim being made about religious liberty. It would be
interesting to debate the original meaning of free exercise--as applied to
claims of exemption from general law in connection with large, heavily funded,
substantially "public" institutions that provide critical services and are
influenced by an affiliation with a hierarchical church based elsewhere where
the adherents do not share the hierarchy's dogma about the matter at hand. It
would be hard to have a direct comparison, such as the attachment of a GPS
tracker to a car.
Last, and I hope someone reads this far, does anyone know if it's common for
Catholic physicians to refuse to counsel patients on birth control? Do they
refuse to prescribe birth control and send their patients elsewhere? Do
non-Catholic physicians in Catholic hospitals have to advise patients that
birth control is an "evil?" How strong is the enforcement of the doctrine at
ground level? And do large Catholic hospitals have mainly Catholic doctors? I
wonder how many of the hospitals have a majority of doctors, including Catholic
doctors, who have no problem with prescribing contraceptives? If so, can a
hierarchy really be the sole carrier of the beliefs around which a religious
liberty claim would be constructed?
Would I be wrong to think that the founders had individual liberty in mind,
entirely without reference to hierarchical assertions of top-down belief edicts
and, indeed, in opposition to the control over individual conscience of large,
authoritarian church hierarchy? Isn't the quest for liberation from
authoritarian church power a large part of our history and a big piece of the
meaning of free exercise?
Mae Kuykendall
>>> Ira Lupu <icl...@law.gwu.edu> 2/13/2012 8:49 AM >>>
On the burden question -- Religious entities may limit hiring to
co-religionists, and then make their best efforts to enforce religious norms
against employees. Doesn't that option make the burden of the HHS policy far
less substantial?
I think a common reaction to the religious liberty claim being advanced here is
its leveraging effect on employees who are not of the faith. So even if some
faiths have a religious mission to serve others, do they similarly have a
religious mission to employ others? Or is it their religious mission to impede
access to contraception by all, whether or not of the faith? If it's the
latter, I don't know why their position is any different from or stronger than
taxpayers who don't want to to support what they see as immoral activity by
their government.
On Sun, Feb 12, 2012 at 9:51 PM, Marc DeGirolami <marc.degirol...@stjohns.edu>
wrote:
Before one gets to how compelling the state's interest is, one needs to make a
judgment under RFRA about whether the burden is "substantial."
Like Kevin, I'd also like to know how supporters of the mandate would
characterize this burden as incidental, as opposed to "substantial," as the
latter term is used in the RFRA. In the face of a claimant's sincere argument
(if we may stipulate to sincerity) that the burden of complying with a
regulatory scheme which coerces it to purchase a health plan that covers
products and services as to which it has a conscientious objection is
substantial (I am assuming that the alteration announced by the President on
Friday retains this basic structure, though I am uncertain about that), what
are the arguments that would be advanced to support the case for the burden's
non-substantiality? Would supporters of the mandate rely on an understanding of
Catholic theology? Would they claim that those who object have not understood
well their commitments to the doctrine of "cooperation with evil" -- or some
other religious doctrine -- and that courts are in a strong position to assess
wh!
ich rival understanding is the most plausible? RFRA, as amended by RLUIPA,
forecloses an inquiry into the "centrality" of a particular belief or practice
within a belief system as a means of determining the substantiality of the
burden imposed on the claimant. What would a court rely on to conclude that,
notwithstanding the sincere testimony of the claimant about the burden's
substantiality, the burden was actually incidental?
Marc DeGirolami
-----Original Message-----
From: conlawprof-boun...@lists.ucla.edu
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Sunday, February 12, 2012 9:11 PM
To: Zietlow, Rebecca E.; Richard Dougherty; Marci Hamilton
Cc: Con Law Prof list
Subject: RE: Contraceptives and gender discrimination
Suppose one accepts the argument about incidental burdens. What about the
RFRA's "least restrictive means" requirement? See 42 U.S.C. 2000bb-1(b)(2). Do
supporters of the contraceptives mandate concede that it cannot satisfy this
part of the RFRA and fall back on the no-substantial-burden argument? If so,
how does that argument go? Or is there instead an argument that forcing private
employers with religious objections to offer a policy for "free" contraceptives
is the _least restrictive means_ of providing access to low-cost contraceptives?
Kevin Walsh
________________________________________
From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] On
Behalf Of Zietlow, Rebecca E. [rebecca.ziet...@utoledo.edu]
Sent: Sunday, February 12, 2012 8:52 PM
To: Richard Dougherty; Marci Hamilton
Cc: Con Law Prof list
Subject: RE: Contraceptives and gender discrimination
No one is denying a constitutional right to birth control to women. Lack of
access to insurance for birth control may effectively bar low income women who
work for Catholic run institutions from obtaining birth control. However, as we
all know, the government has no affirmative obligation to subsidize the
exercise of any constitutional right. My point was simply that enabling those
women to have effective access to birth control is a strong enough government
interest to justify any incidental burden on Catholic run institutions imposed
by the Obama policy. And, that this is an issue that uniquely affects women.
And yes, birth control is often prescribed for reasons other than
contraception, to treat medical conditions including hormonal imbalances etc.
Rebecca Zietlow
________________________________
From: Richard Dougherty [dou...@udallas.edu]
Sent: Sunday, February 12, 2012 8:40 PM
To: Marci Hamilton
Cc: Zietlow, Rebecca E.; Con Law Prof list
Subject: Re: Contraceptives and gender discrimination
Perhaps I am missing something major here. Is someone denying women their
constitutional right to purchase birth control? Isn't the only question here
whether women -- or spouses of men -- working for Catholic organizations, can
get it for "free"? (Of course it won't be free for anyone, as everyone will be
paying higher premiums; insurance companies aren't in the charity business.)
Prof. Zietlow I think hit upon a very important aspect of this question. When
Viagra was invented/discovered/popularized, and it got insurance coverage, that
did prompt states to pass their requirement for birth control coverage. But one
(not me) might argue that there was a medical disability that argued in favor
of coverage (is ED covered under the ADA? I honestly don't know). I'm not aware
of the comparable argument for birth control, but I am willing to be educated
on it.
Richard Dougherty
On Sun, Feb 12, 2012 at 6:51 PM, Marci Hamilton
<hamilto...@aol.com<mailto:hamilto...@aol.com>> wrote:
Rebecca and Lauren are correct. The bishops are also opposed to constitutional
rights for women and privacy rights generally. This is just another plank in
their platform on these issues. It is worthwhile to keep in mind that this
scenario involves constitutional interests on both sides at every level and
there is a great deal at stake for women generally. To treat the organization's
religious claims as though they are the only ones to analyze is a gross
oversimplification
Marci
On Feb 12, 2012, at 7:23 PM, "Zietlow, Rebecca E."
<rebecca.ziet...@utoledo.edu<mailto:rebecca.ziet...@utoledo.edu>> wrote:
I agree with Lauren that there is a gender equality issue here. I understand
that in 2000, the EEOC agreed as well, and issued a ruling that employers who
provide insurance coverage for Viagra but deny coverage for birth control
violate Title VII. The Con law issue is that apparently the Catholic church
challenged this application of Title VII on free exercise grounds and lost in a
couple of lower court rulings. The only thing different now is that the
Catholic employers are being required to pay for coverage, but I think Obama
took care of that issue with the policy modification on Friday (others may
disagree).
This whole scenario has striong implications for women's rights, including both
sex equality concerns and the constitutional right to use birth control.
Wouldn't the government's interest in protecting those rights be sufficiently
strong to justify the Obama policy if it was challenged by the Catholic church
as violating the FE Clause?
Rebecca Zietlow
________
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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________
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