Doug,
Would your view -- expressed in the third paragraph of your post -- be different
if the HHS mandated contraceptive coverage, preventive care, etc. actually saved
the employer money rather than cost the employer money? Would saving money
(i.e., reduced insurance premium) be a substantial burden even if the saving
resulted a government mandate to provide health care that the employer found
religiously objectionable?
Bob Ritter
Jefferson Madison Center for Religious Liberty
A Project of the Law Office of Robert V. Ritter
Falls Church, VA 22042
703-533-0236
On October 1, 2012 at 8:01 PM Douglas Laycock <dlayc...@virginia.edu> wrote:
> My post on the analogy between exemption from military service and exemption
> from abortion was addressed to Marci's claim that there should be nothing
> special about objection to abortion. That is a much broader claim than just
> the ACA issue. And there are people in the pro-choice movement pushing against
> conscience protections for medical providers.
>
> As to ACA, I do not think there is a burden when an employer pays salary, and
> the employee then uses the money for purposes the employer considers immoral.
> The salary payments could have been used for anything.
>
> I think the burden on the taxpayer who pays taxes, knowing that the government
> will use the money for purposes the taxpayer considers immoral, is highly
> attenuated, and uniformly outweighed by the government's compelling interest
> in paying taxes.
>
> The ACA looks different to those objecting, and plausibly so, because the
> money is not paid to the employees or to the government. The employer buys a
> package of services that includes the services the employer believes to be
> immoral, including the morning-after and week-after pills that the employer
> believes sometimes kill human beings. The employer contracts for those
> services and pays for those services, and these employers say they cannot in
> conscience do those things.
>
> On Mon, 1 Oct 2012 19:46:50 -0400
> Marty Lederman <lederman.ma...@gmail.com> wrote:
> >Fortunately, the question here is far, far removed from whether the state
> >can or should require anyone to perform an abortion, or to kill in battle.
> >It is, instead, whether the state can require employers to take some of the
> >money they would have used to pay employee salaries, or taxes -- some of
> >which would foreseeably have been used to pay for contraception (or even
> >abortions, in the case of salaries), anyway -- and instead use it to
> >partially subsidize an insurance plan that, like salaries and taxes, is
> >used to pay for countless goods and services, some of which involve
> >contraception, but only when someone else (the employee) chooses to use it
> >for that purpose. (FWIW, I believe the law does not allow HHS to require
> >plans to cover abortions, and the Rule therefore does not do so.)
> >
> >Doug, a couple of your posts here have suggested that even in the cases of
> >salaries and taxes being used for contraception, there is a substantial
> >burden on the religious exercise of objectors, but one that might be
> >overcome by a compelling government interest. For anyone who starts from
> >that view, the HHS would certainly raise a harder question. But I am not
> >aware of any employer, or Catholic theologian, who takes the view that the
> >payment of taxes or salaries is wrongful just because the employer knows
> >that they will be put to use for contraception and (in the case of
> >salaries) abortions . . . and many other things, besides, that are wrongful
> >in the eyes of the employer.
> >
> >Thus the question here is whether the state ought to take at face value the
> >assertions of some employers that the moral obligation changes dramatically
> >when the money is used for partial subsidization of an insurance plan,
> >rather than for taxes or salaries. I actually think this is a complex
> >question, as to which I deeply appreciate the many thoughtful views others
> >have contributed to this thread. But whatever the merits of that
> >distinction, the case is a far cry from compelling the employer "to kill
> >another human being."
> >
> >On Mon, Oct 1, 2012 at 7:27 PM, Douglas Laycock <dlayc...@virginia.edu>wrote:
> >
> >> We have a long political tradition of treating objections to killing as a
> >> special claim, deserving special protection. We have exempted conscientious
> >> objectors in all our wars, even when national existence was on the line,
> >> and notwithstanding powerful incentives to dubious conversions or false
> >> claims.
> >>
> >> In the abortion case, the majority believes it is not a killing of a human
> >> being; the conscientious objector believes it is. The disagreement over the
> >> nature of the killing comes at a slightly different point; I do not claim
> >> that the cases are identical.
> >>
> >> I do believe that there are sound reasons, reflected in our legal and
> >> political tradition, to give special deference to what the conscientious
> >> objector believes is a refusal to kill another human being.
> >>
> >> The cases also differ in the weight of the government's interest; it is
> >> almost never essential that an abortion be performed or assisted by a
> >> particular medical provider.
> >>
> >> On Mon, 1 Oct 2012 17:16:55 -0400 (EDT)
> >> hamilto...@aol.com wrote:
> >> >
> >> >
> >> >I'm glad you asked this question, because it seems to indicate that the
> >> argument against the ACA at base appears to be that the belief against
> >> abortion is somehow more important than other beliefs. I don't see how the
> >> Establishment Clause permits that kind of religious belief prioritizing, or
> >> any of the free exercise cases either.
> >> >
> >> >
> >> >Marci A. Hamilton
> >> >Paul R. Verkuil Chair in Public Law
> >> >Benjamin N. Cardozo School of Law
> >> >Yeshiva University
> >> >55 Fifth Avenue
> >> >New York, NY 10003
> >> >(212) 790-0215
> >> >hamilto...@aol.com
> >> >
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