The pill is widely prescribed for serious medical problems as I delineated
earlier. And the decision of when to have children is not remotely limited to
pleasure.
The govt has a compelling interest in ensuring the maximal availability of
birth control for these medical reasons and to shore up the right of women to
choose.
The govt also has a compelling interest in treating men and women equally.
There is a strong argument by women that a health care system that does not
include reproductive health care is discriminating against women.
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Aug 18, 2013, at 12:54 PM, mallamud <malla...@camden.rutgers.edu> wrote:
> 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
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>>>
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>>
>>
>> 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.
_______________________________________________
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