That is a different argument, and potentially a plausible one. The concern isn't that the parent is trying to force his religion on his daughters, but rather that taxpayers will be left holding the bag. (I don't think the "temptation" argument suffices, at least under the strict scrutiny test, but the burden on taxpayers one is different.)
But doesn't Sherbert suggest that (assuming a substantial burden is present), avoiding any burden - even a relatively slight one - on taxpayers is not necessarily a sufficient government interest? Likewise, doesn't Yoder suggest that claims of burden on taxpayers have to be demonstrated to a significant degree, and considered together with any countervailing fiscal benefits that the group's practices might have? (The question of the net fiscal cost of unwanted pregnancy, for instance, is complicated; unwanted children cost the government money for prenatal care, and may burden the social welfare system, but they may also grow up to be taxpayers who help fund that social welfare system.) One merit of a pure Smith regime is that courts don't have to get in to these questions of deciding what is and what isn't an externality, and what the empirical effects of particular conduct are. But if we are to have a RFRA regime, then there has to be a limit to these sorts of externalities-on-taxpayers arguments, it seems to me, at least if Sherbert and Yoder are among the cases being "restored." Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Saturday, August 17, 2013 5:32 AM To: Law & Religion issues for Law Academics Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate The baseline set by the ACA is NOT a matter of obligation between parents and children. In that regard, the parent has no obligation to obtain health coverage for his non-minor daughters (although the 12 year old, either now or sometime later but before the age of majority, might need emergency contraception for health reasons, and then the parent might indeed have some obligation to cover or pay for the service). The baseline is the minimum coverage requirements ("essential services," which include pregnancy prevention services) for policies that will satisfy the ACA. In the Missouri case, allowing the parent to buy a policy that excludes those services puts the insured daughters at increased risk of unwanted pregnancy. And I'm sure we all agree that unwanted pregnancies impose substantial costs (many of which are not covered by health insurance) on third parties, including but not limited to the women who experience such pregnancies. Here's another analogy -- a parent wants to buy her non-minor child a car, but the parent makes a religious freedom argument that she should be free to buy a car without seat belts. (Assume this is a sincere religious claim.) The parent of course has no obligation to buy the car at all, but if we allow that exemption, we allow the parent to put the child at increased risk of serious injury. Of course, we could frame the objection in terms of the government's compelling interest in reducing the risk of that kind of injury. But we could also say that the parent is imposing costs on the child (who is tempted to take the free but less safe car) as well as other third parties (insurors, who might have to pay more in case of an accident, or other drivers, who might face increased liability for injury.) The real ACA case might be stronger in terms of negative externalities than the hypothetical car case, because the ACA involves both universal obligation (everyone, including those non-minor daughters, must be insured) and entitlement (a policy that satisfies the ACA must include essential services). On Sat, Aug 17, 2013 at 12:05 AM, Scarberry, Mark <mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote: Eugene has a very good point. My employer gives me a choice of signing up for (1) employee-only health insurance (lowest cost) , (2) employee-plus-one-dependent insurance (higher cost), or (3) employee-plus-two-or-more-dependents insurance (highest cost). (And then the premiums are also different depending on whether I choose an HMO or an EPO or a PPO plan.) That's probably typical of employers who offer coverage beyond just the employee. I don't believe the law requires me to sign up for a plan that provides coverage for any or all of the members of my family. A child can stay on the parent's plan until 26 under the ACA, but that doesn't mean the parent has to sign the child up for coverage; at least I don't think it does. My contribution to the monthly premiums under the "employee plus two or more dependents" option is the same whether I'm covering 2 dependents or 12. But in any event the coverage only extends to the dependents that I sign up. I could, for example, have several children ages 18 to 26, and I could sign up all of them, or none of them, or some of them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 16, 2013 8:36 PM To: Law & Religion issues for Law Academics Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate But wait: How can you read ACA as setting a baseline that the parents should guarantee their adult children a full bundle of health services? The ACA doesn't require parents to do this. It allows parents to do this, and many parents do indeed do this, but adult children have no right vis-à-vis the parents to get insurance coverage. The father is free to just tell his children, "Sorry, I won't get you health coverage"; that's not "taking" health coverage from them, it's just choosing not to give health coverage to them. How is it "taking" for him to offer to give less than complete health coverage to them? Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Friday, August 16, 2013 6:07 PM To: Law & Religion issues for Law Academics Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate Eugene and I agree that this legislator is not substantially burdened in his religious freedom, because he is under no duty to buy a family policy. He can avoid the burden without the government penalizing him. So he is in a different position than employers, like Hobby Lobby, who will have to pay a penalty if they drop their health coverage of employees. But the question of "imposing costs" on his daughters is not as simple as Eugene and others seem to want to make it. This is a classic baseline problem. If the baseline for the daughters is no insurance coverage, then their father seems to want to make them better off (just not as well off as he might). But if the baseline is the full bundle of health services that the United States has asserted should be guaranteed to women covered by a policy that satisfies ACA, then the daughters are worse off, because their father has asserted his religious freedom as a justification for talking one essential (according to the government) item out of their bundle. (Sometimes I think that what people see in these ACA cases is what they want to see, but I suppose I am no more capable of escaping that tendency than anyone else.) _______________________________________________ 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. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus 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
_______________________________________________ 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.
