*No* businesses have to offer plans (as I've explained in several posts at Balkinization). But if a plan does so, it must include preventive services. And if the employer -- large or small -- does not offer a plan, its employees will be eligible for an exchange plan, which must also include such services. Either way, employees are entitled to the coverage -- which was the point of the legislation, viz., to create a new universal preventive services benefit.
Sent from my iPhone On Jan 11, 2014, at 9:26 AM, nathan chapman <nathan.s.chap...@gmail.com> wrote: > Marty, > > Quick clarification: Do small business have to offer plans? (I know that > small businesses are not subject to the same Title VII standards as large > businesses, so there is strong legislative precedent for treating small > businesses differently than, say, large closely held for profits with > religious objections.) > > Nathan > > On Jan 11, 2014, at 7:54 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > >> Just a quick point to quibble with the factual premises of the "selectivity" >> argument. Plans offered by small business do have to include the relevant >> preventive services, including -- but hardly limited to -- contraception >> services. (The services also include cholesterol screening; colorectal >> cancer screening; diabetes screening for those with high blood pressure; >> certain immunizations; “evidence-informed preventive care and screenings” >> for infants, children, and adolescents; specified annual well-woman visits; >> gestational diabetes screening; HPV DNA testing; testing for sexually >> transmitted diseases and HIV screening and counseling; breastfeeding >> support, supplies and counseling; and domestic violence screening and >> counseling.) >> >> Likewise, the so-called grandfathering "exception" is merely an ordinary >> "phasing in," or timing, provision, which allows a transition period for >> compliance with several of the Act's requirements until the plans otherwise >> make one of several specified changes. The employees of such plans will >> eventually receive the preventive care coverages (not only contraception -- >> all those listed above). >> >> The only real "carve-out" -- the only one that would result in employees not >> receiving contraceptive coverage -- is HHS's own exemption for churches and >> their auxiliaries. And if that religious accommodation is what triggers >> Lukumi, well . . . >> >> >> On Fri, Jan 10, 2014 at 9:37 PM, James Oleske <jole...@lclark.edu> wrote: >>> The opening brief for Conestoga Wood Specialties Corp. has been filed, and >>> I believe this may be the first time the Supreme Court has been presented >>> with an argument in a party's merits brief as to the scope of the so-called >>> "Sherbert-exception to Smith" -- the idea expressed in both Smith and >>> Lukumi that although the Free Exercise Clause does not require religious >>> exemptions to be made from uniform legal obligations, religious exemptions >>> may be required when other exemptions to a law are available. >>> >>> In an article last year, I suggested that there remain at least five major >>> unresolved questions about the selective-exemption rule: >>> >>> 1. What is the purpose of the rule: is it designed to guard against the >>> danger of intentional discrimination or to address the adverse impact on >>> religious minorities of unintentional neglect or indifference? >>> >>> >>> >>> 2. Does the rule only apply when a law allows for ad hoc, individualized >>> exemptions to an obligation (e.g., discretionary excuses under a "good >>> cause" or "necessary" standard), or does it also apply when the government >>> makes select categorical exemptions to a law? >>> >>> >>> >>> 3. If the rule applies when categorical exemptions are made, how should >>> courts determine whether an existing categorical exemption to a law is >>> sufficiently analogous to the requested religious exemption to be deemed a >>> relevant comparator? >>> >>> >>> >>> 4. How many comparable categorical exemptions must exist before the >>> selective-exemption rule is triggered by the denial of a religious >>> exemption? >>> >>> >>> >>> 5. What is the appropriate level of judicial scrutiny to be applied once >>> the selective-exemption rule is triggered? >>> >>> >>> Conestoga's positions on questions #2 and #5 are what you would expect. On >>> #2, it argues that the selective-exemption rule extends to situations >>> involving categorical exemptions (in this case, the ACA's exemptions for >>> small businesses and grandfathered plans). On #5, it argues for strict >>> scrutiny (which is what the Court indicated in both Smith and Lukumi >>> applies to individualized-exemption situations). >>> >>> Conestoga's brief does not contain much argument relevant to questions #3 >>> and #4. >>> >>> As for #1, I found the most relevant passage in Conestoga's brief to be >>> quite surprising. Usually, advocates of a broad reading of the >>> selective-exemption rule make a point of contending that the rule is not >>> limited to situations involving the danger of discriminatory intent. Yet, >>> Conestoga's brief quotes a portion of the Third Circuit's decision in >>> Fraternal Order of Police Newark Lodge v. Newark that speaks directly to >>> discriminatory intent and is not usually quoted by advocates of a broad >>> reading of the rule: >>> >>> "Providing secular exemptions 'while refusing religious exemptions is >>> sufficiently suggestive of discriminatory intent as to trigger heightened >>> scrutiny under Smith and Lukumi.'" Br. at 46 (quoting Newark Lodge at 365). >>> >>> >>> As it turns out, this is the very same passage from Newark Lodge that I >>> suggested in my article may narrow the universe of categorical-exemption >>> situations that trigger the selective-exemption rule: >>> >>> "[T]the court’s application of the selective-exemption rule in Newark Lodge >>> also included the key phrase, 'while refusing.' That phrase is a reminder >>> of an important but underappreciated fact in the case: the categorical >>> medical exemption was not part of the original no-beard policy and was only >>> adopted after the request for the religious exemptions was made. Under >>> those circumstances, granting the categorical medical exemption while >>> denying the religious exemptions would, as the court notes, seem to raise >>> the same risk of devaluing religion as a situation in which individualized >>> exemptions are available and religious exemptions are denied. It is >>> important to note, however, that the very reason there was a risk of >>> devaluing religion in Newark Lodge—that the denied religious exemption was >>> considered alongside other granted exemptions—is a dynamic likely to be >>> absent in many categorical exemption cases, where exemptions are written >>> into a law or policy separate from any consideration of a request for a >>> religious exemption. In those more typical categorical exemption cases, >>> there would seem to be considerably less reason to draw an inference of >>> discriminatory intent from the adoption of a categorical exemption." - >>> Lukumi at Twenty, 19 Animal Law 295, 308 (2013). >>> >>> With respect to the ACA cases, the denied religious exemptions for >>> commercial business owners were not considered alongside the granted >>> secular exemptions. Rather, "the granted secular exemptions (for small >>> businesses with fewer than fifty employees and for grandfathered plans) >>> were adopted by Congress in the ACA prior to HHS's regulatory consideration >>> of religious exemptions for commercial businesses." Id. at 328 n.193. So if >>> my reading of the selective-exemption rule is correct, the rule would not >>> necessarily be implicated in the ACA cases (at least by the small business >>> and grandfather exemptions; I'll leave to others the merits of Conestoga's >>> argument that HHS's granting of exemptions to some religious entities >>> requires exemptions to be granted to all entities with a religious >>> objection). >>> >>> Of course, many commentators take a much broader view of the >>> selective-exemption rule than do I, as reflected in the brief filed by 24 >>> constitutional law professors in Stormans v. Selecky, which is now being >>> held by the Ninth Circuit pending Conestoga. >>> >>> That law-scholars amicus brief is available here: >>> http://www.becketfund.org/wp-content/uploads/2011/02/Constitutional-Law-Scholars-Brief.pdf. >>> >>> My article on the selective-exemption rule is available here: >>> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2216207 >>> >>> Conestoga's opening brief is available here: >>> http://www.adfmedia.org/files/ConestogaMeritsBrief.pdf >>> >>> - Jim >>> >>> >>> >>> _______________________________________________ >>> 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. >> >> _______________________________________________ >> 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. > > _______________________________________________ > 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.
_______________________________________________ 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.
