Marci,
I have trouble seeing the compelling nature in the government's
interest to provide contraception. The cost is too low, and basically,
contraception allows for pleasure and the enhancement of interpersonal
relationships. The health justification comes closer, but compared to
the provision of needles for drug use (I do not know if that is a
compelling interest), there is certainly not generally addiction
involved. Even with abortion, government does not need to fund it--the
compelling interest is in not making it illegal.
Jon
On 2013-08-17 10:57, Marci Hamilton wrote:
I agree w Chip and Jim on the baseline issue, but also the previous
point about the point of the Religion Clauses is not just rights for
the believer but also the path to peace in a diverse religious
culture. Lee and Bowen v Roy stand for the proposition that if one
chooses to employ or to take advantage of govt benefits, the Free
Exercise Clause does not provide a way out of the obligations that
come w the voluntary decision made by the believer. RFRA opens a door
for believers to get past these sensible decisions, but I do not
think
that even if the parent who voluntarily chooses to cover his children
over the age of majority could prove substantial burden, the govt
does
have a compelling interest in giving women the most realistic
opportunity to choose for themselves whether to use contraception for
any reason and to make sure those choices are as unhindered as men's
decisions to pursue their own choices. The women are being protected
by the govt from coercion by employers and parents.
The govt also has a compelling interest in keeping health care costs
under control. Chip mentions unwanted pregnancy; I mentioned some of
the medical reasons reproductive health services are needed, which
can
affect GDP if untreated. And finally, there is the govt's legitimate
compelling interest in ensuring the health care system does not
discriminate on the basis of gender or religion and does enable
women's choices. There is no less restrictive means of giving each
woman her own choice regarding reproductive health than giving her a
choice.
The abortion decisions to date have all been about what the state can
do to restrict women's rights. But those restrictions are not
constitutionally required. Just because the government is not
required
to pay for reproductive health care does not mean the govt does not
have a compelling interest in providing it. This is a new scenario
where the govt is on the side of women and reproductive rights, which
entails new ways of thinking.
Marci
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Aug 17, 2013, at 8:54 AM, James Oleske <jole...@lclark.edu [8]>
wrote:
Eugene,
No federal or state law required the Amish farmer in Lee to employ
workers, but once he made that choice, the Supreme Court used the
federal requirements governing employment benefits as the baseline
for evaluating externalities ("Granting an exemption from social
security taxes to an employer operates to impose the employer's
religious faith on the employees.").
Likewise, although no federal or state law requires parents to put
their adult children on their insurance, once they make that choice,
the argument is that federal requirements governing health benefits
should be used as the baseline for evaluating externalities.
Of course, it's certainly possible to argue that the baseline should
be set in a different place in parent/adult-child context than in
the employer/employee context, or in the health insurance context
than the employment context, but I think Chip is right that --
wherever one ultimately comes out -- this is a classic baseline
problem.
- Jim
Jim Oleske
Lewis & Clark Law School
SSRN Page: http://ssrn.com/author=357864 [3]
Faculty Page: http://law.lclark.edu/faculty/james_oleske/ [4]
On Fri, Aug 16, 2013 at 8:35 PM, Volokh, Eugene <vol...@law.ucla.edu
[5]> wrote:
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 [1]
[mailto:religionlaw-boun...@lists.ucla.edu [2]] 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.)
[snip]
On 2013-08-16 17:38, Volokh, Eugene wrote:
> I still don't understand the rhetoric of "imposing on his
daughters"
> here. Plaintiff is entitled, as a benefit for himself because
of his
> > employment, to coverage for his 18-year-old daughters as well
as for
> himself. But it's his choice; he is entirely free to say
"Sorry, gals,
> you're on your own now." Maybe that's unkind towards to his
children,
> > but it's not something that the law views as "imposing on his
> daughters the cost of medical insurance." Rather, it's
"declining to
> give the daughters a gift [albeit a subsidized one] of medical
> > insurance." (Incidentally, wouldn't he still have to pay for
his
> daughters under many employer plans, which reasonably charge
extra for
> extra insureds?) In this respect, it's very much like a
parent's
> > declining to pay for his adult children's college.
>
> Now it's true that the plaintiff "wants it both ways," and
maybe his
> employer shouldn't give him that option. But what I don't see
is how
> > his wanting it both ways is "imposing on his daughters" (at
least
> assuming I'm right that leaving off the daughters entirely
isn't
> "imposing" on them). It's just giving them a gift that is
somewhat
> > less valuable than what they might want, and that what he
might easily
> give them (again, like paying for their Notre Dame education
and not
> their Princeton education). How is one adult's choice to give
another
> > adult a slightly less valuable gift than he could have
otherwise given
> an "externality imposing event," at least if "externality
imposing
> event" is to have any meaning?
> >
> Eugene
>
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu [6]
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [7]
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.
Links:
------
[1] mailto:religionlaw-boun...@lists.ucla.edu
[2] mailto:religionlaw-boun...@lists.ucla.edu
[3] http://ssrn.com/author=357864
[4] http://law.lclark.edu/faculty/james_oleske/
[5] mailto:vol...@law.ucla.edu
[6] mailto:Religionlaw@lists.ucla.edu
[7] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
[8] mailto:jole...@lclark.edu
_______________________________________________
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.
