1. The form only applies to "self-insured" plans run by third-party administrators, such as Notre Dame's employee plan. Notre Dame has the option of switching to a insurer-run plan, as it has already done with its Aetna-run student plan. If it treated its employee plan the way it treats its student plan -- using Aetna rather than an Aetna subsidiary TPA -- the form would be inapposite. (ND also has the option of cancelling its plans altogether.)
2. The form itself, in any event, does not involve ND "authorizing" anyone to do anything. Meritaine is obliged to provide the coverage as a matter of federal law by dint of ND's opt-out, not because ND has "authorized" them to do so. 3. At any rate, Posner asked his question precisely in order to test whether the form itself was the problem: He asked whether ND would have the same objection if there were no such form and ND instead had to send its opt-out notification to the federal government. The answer was "yes." 4. I don't understand the argument that whether the exemption would impose a harm on the employees "begs" the question. Yes, of course if the law -- the Constitution or RFRA -- requires an exemption, then the ND employees will not, under the law, be entitled to the benefit that everyone else receives. But that's true in every exemption case. The point is that, like Social Security, police and fire protection, etc., everyone is entitled to this benefit *unless* an exemption is mandated. It is in that sense that the women who work for ND will be "burdened" -- they'll have to pay for an important health service that everyone else in America will receive without such payment. On Fri, Feb 14, 2014 at 6:18 PM, Kurt Lash <kurtla...@gmail.com> wrote: > Isn't ND claiming that the form names notre dame as the entity authorizing > a third party to do harm (from the perspective of the church), and that the > form in fact legally authorizes the third party to do that harm? And isn't > this distinguishable from the tax dissent cases where the allegedly harmful > actions of the government cannot be reasonably viewed as expressly > authorized by a named person or entity, and which involve a far more > generalized grievance? As for whether ND imposes a harm by denying a legal > benefit, this begs the question regarding whether the ACA, which > incorporates by reference the protections of RFRA, actually grants a > benefit in precisely this kind of case. > > Kurt Lash > > Sent from my iPad > > On Feb 14, 2014, at 5:01 PM, Eric J Segall <eseg...@gsu.edu> wrote: > > > I am guessing Notre Dame receives millions of dollars a year from the > federal government requiring all kinds of contracts and forms. It is not a > serious argument that sending that same government a notice to opt out of a > part of an insurance plan is a substantial burden. I suspect this was part > of Posner's frustration. > > > Thus, Notre Dame is saying it does not want anyone providing its > students/employees contraception. This is offensive in a world where we > know that many top level people at Notre Dame use contraceptives. > > > Best, > > > Eric > > > > _______________________________________________ > 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. > >
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