It cannot be the answer that the coverage is mandated. Whether the coverage can
be mandated is the question. The employer signs a contract, and pays for a
contract, that covers these services. But for the regulation, he could sign and
pay for a very similar contract that does not cover these services.
Re saving money: I’m going to tweak the facts to isolate the issue of cost
saving. I’m going to make the religious objection one that everyone would
share. I understand that these hypothetical facts are extreme. The point is
only to separate the issue of saving money from all the other issues.
Suppose the church runs an orphanage with 1000 children. It invites bids on a
contract to feed the children for a year. It specifies the quantity and quality
of food. It gets two bids.
The first bid is $1.5 million. The second bid is $1.3 million. The second
bidder specifies that after the contract is awarded, it will take the 100
oldest children, drive them to the nearest big city, and dump them on the
street. There will be no need to feed them anymore. The church should not worry
that it is paying for this immoral act, because it isn’t paying – it is
actually paying less instead of more. But of course the church would think
itself morally responsible if it signed that contract.
>From the church’s perspective, if contraception saves money, it will do so by
>preventing children from being born. Most of us think that contraception is
>good thing. But if you think it an evil thing, the fact that it saves money
>does not make it morally acceptable to contract for it, or to pay for a
>package that includes it.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: b...@jmcenter.org [mailto:b...@jmcenter.org]
Sent: Wednesday, October 03, 2012 1:23 PM
To: Douglas Laycock
Subject: RE: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
Doug, thank you for responding but I still don't comprehend your point. (By the
way, you slipped the money back into the argument.)
Since the coverage is mandated and operative clauses are likely boilerplate
(thus no or virtually no "arranging" and "contracting: for the contraceptive,
etc. coverage) and under the scenario I presented that the employer is charged
nothing additional, I suspect that what is left is merely that an employer
maybe upset that his or her employees have an opportunity to participated in
the mandated services. Much to attenuated for me to call the mandate a
substantial burden on the employer's free exercise of religion.
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
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