Yes, Scott, that is one part of ND's claim -- that the form not only notifies the government and Aetna/Meritain of ND's objection, but also "sets in motion," or "triggers" or "enables" Aetna and Meritain to offer independent coverage. As I've discussed at greater length here -- http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html-- that argument seems to me to prove way too much, as it might be raised in any number of cases (exemptions from the draft; judicial recusal; a pharmacist who refuses to dispense a drug) in which the objector's objection is what "triggers" the obligation of someone else to do what the objector will not.
And as to the argument that the certification form is technically an "instrument" of ND's own plan, I'm not sure why that would matter in the complicity analysis but, in any event, that's why Posner asked the hypo in which that is not the case . . . and counsel said ND would still have an objection, even if the certification were sent directly to the USG and were not a plan instrument. On Fri, Feb 14, 2014 at 4:21 PM, Scot Zentner <zent...@csusb.edu> wrote: > I am not sure, but is it not the case that ND's precise claim is that > the exemption part of the form is not the problem, but the fact that the > form is also an "instrument" that sets in motion the provision of > contraceptive services by the third party? So ND's objection is that the > employee would not have contraceptives but for the provision of insurance > by ND and its signing of the form. > > Scot Zentner > Professor > Political Science > CSU, San Bernardino > > > ------------------------------ > *From:* conlawprof-boun...@lists.ucla.edu [ > conlawprof-boun...@lists.ucla.edu] on behalf of Marci Hamilton [ > hamilton.ma...@gmail.com] > *Sent:* Friday, February 14, 2014 12:46 PM > *To:* Marty Lederman > > *Cc:* conlawp...@lists.ucla.edu > *Subject:* Re: Posner on oral advocacy in religion caseesri > > I don't want to put too fine a point on this, but this entire line of > reasoning by ND is utter insanity. The good news is that the religious > groups have gotten too clever by half and awakened the women and civil > rights groups in the country who did not understand how RFRA operates > against the vulnerable. It is, however, the natural end point of the > likelihood that believers and institutions would try to exploit > RFRA to its absolute maximum limits. Every group/individual is likely to > exploit the power they have. That is one of the most important principles > the US is built on. > > But the people, the Constitution, and the state constitutions are > supposed to guard against such overreaching. If this is what > RFRA requires, it is a violation of the Establishment Clause. All that > is left is for someone to claim that their religious > faith is substantially burdened when they think about their > neighbor/student/employee using a condom (preventing conception), and > condoms should not be approved for sale by the FDA because of the burden > they are experiencing. > If I were on the other side in the ND case, I would suggest a sincerity > challenge, and depositions of every higher-up at ND to find out if they > have ever used birth control. > > Marci > > > > _______________________________________________ > To post, send message to conlawp...@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof > > 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.
