I think women do have a right here, which is the right not to be discriminated against on the basis of gender. We are way outside the bounds of Hosanna-Tabor, so the right not to be discriminated against based on gender stands. Marty's point is correct that there is global equal treatment here, which undermines ND's arguments based on precedent and common sense. But there is also a more specific equality argument. This is an attempt to force women to pay for their medical care, which is specific to women, while men are covered. As everyone knows, it's not simply medical care to avoid pregnancy, but also medical care for many ailments (some very painful), which require hormonal treatment. Whether it is $5/year or $2,000/year, misses the point. The govt's interest in ensuring that women, as a class, are not shortchanged in the health care system to their medical detriment must trump the de minimis burden on ND.
Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -----Original Message----- From: Marty Lederman <lederman.ma...@gmail.com> To: David Bernstein <davidebernst...@aol.com>; Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Cc: conlawprof <conlawp...@lists.ucla.edu>; zentner <zent...@csusb.edu> Sent: Fri, Feb 14, 2014 5:34 pm Subject: Re: Posner on oral advocacy in religion caseesri Who's talking about a deprivation of liberty, and why should that matter? If you didn't receive social security benefits because your employer had a religious reason for refusing to pay into the system, would you not be injured, since social security is now something to which everyone is entitled? Likewise, under the ACA, virtually all Americans are now entitled to obtain affordable insurance, without regard to preexisting conditions, etc. And that new universal benefit is the right to obtain an insurance plan that must include certain services that you can receive without cost (e.g., no co-pay), such as immunizations, colorectal cancer screening, pediatric preventive care, and contraceptive services (as well as many others). You obtain these benefits regardless of the source of your insurance plan -- whether it be through Medicare, or Medicaid, or through a plan on an exchange . . . or via an employer-provided plan. No employer is required to provide a plan, but if you do provide one, it must include cost-free reimbursement for such services, just as virtually every other plan must. Notre Dame, then, is endeavoring to deny its employees and students what all other employees and students are entitled to, namely, an affordable plan that includes reimbursement for the whole array of required services. On Fri, Feb 14, 2014 at 5:12 PM, <davidebernst...@aol.com> wrote: Allow me to point out, given the tenor of some recent comments, that regardless of the outcome of this case, Notre Dame can't and won't stop anyone from buying and using contraceptives--they just wouldn't be covered by their health insurance. And given that no one is forced to work for or be a student at Notre Dame, all this would really means is that when one is deciding whether to be a student at or work for Notre Dame, one would do so with the knowledge that contraceptive coverage isn't available. If you're contraceptives are going to cots, say, $400 a year, you just add that in to the cost of your tuition or deduct that from your expected salary. I'm not seeing any great deprivation of liberty under those circumstances.
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