Eugene has it exactly right. On a related note, if, as some people have claimed, insurance premiums would be higher if contraceptive, sterilization etc. services were not covered (due to additional pregnancies), then it becomes perfectly obvious that the objection is not a disguised attempt to avoid costs. The analogy is imperfect, but it's like a taxpayer being allowed to check a box on a tax return that will cause the taxpayer to have to pay 10% extra in taxes, but will also cause the govt to segregate the taxpayer's payment (into a "lockbox"?) so that none of the money is traceable to payment for armaments. A taxpayer who checks the box certainly can't be accused of claiming a conscientious objection to war in order to save money.
(The analogy is imperfect for various reasons. For example, one who pays taxes is not being required to assent to the use of the taxes for any purpose. It also seems unlikely that insurance rates actually will be lower if contraception is covered. The main effect of the HHS requirement, insofar as it deals with contraception, may be that people switch from inexpensive birth control methods - e.g., generic pills that have been on the market for a long time - to more expensive kinds - e.g., the latest name brand version that is still under patent. The requirement, if I understand it correctly, requires coverage of all FDA approved contraceptives (without a copay and without a higher copay for nongeneric drugs. I wonder whether the pharmaceutical companies helped write it.) Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, October 03, 2012 8:07 AM To: Law & Religion issues for Law Academics Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Isn't that like saying, "if it's OK for you to 'produc[e] the raw product necessary for the production of any kind of tank,' why is working on tank turrets any different?"? Why isn't the answer much like that given in Thomas: "But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one."? Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu]<mailto:[mailto:religionlaw-boun...@lists.ucla.edu]> On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:49 AM To: Law & Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" That's the point, Mark. The employer freely, and without objection, enters into an employment contract with the employee to pay wages in exchange for labor, knowing full well that some % of the wages will be used for contraception, abortion, and probably a bunch of other things the employer considers sinful. Now, the state requires that the contract be changed slightly, so that in exchange for labor, the employee gets not only wages (in effect diminished because of the cost of the health insurance), but also access to a health insurance plan. What I think the judge was getting at here was: If the first contract is morally unobjectionable, why is the second any different? On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark <mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote: But it simply is not the case that the alleged burden is use of the employer's money mediated by independent decisions of others. It's the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:03 AM To: Law & Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock <dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer's perspective, it doesn't matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:434-243-8546> _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
