As I explained in my previous post, the supposed alternatives to the current regulations aren't as effective, and in any event are unlikely to be politically viable due to opposition by many of the same people who oppose the current system. These "just a modicum of effort" suppositions appear to be based on misunderstandings of all sorts of things — and would subject the affected women to the very costs and burdens that the women's health provisions attempted to address.
Virtually all Americans and virtually all American Catholics support (or do not oppose) the use of contraception. Some oppose it on religious grounds, and if we can accommodate them without harming or burdening others, then we should probably do so. But here there are harms and burdens to third parties. We wouldn't accept a religious challenge to the equal pay laws, even though the government could make make up the difference by paying affected women a salary supplement; that option would be burdensome and demeaning to women, even though it would be theoretically possible and even if some of the affected women could afford to feed their families without it. I don't see why we should burden the affected women in these cases just because the particular item at issue involves sex and procreation. On Feb 17, 2014, at 8:40 PM, "Gaubatz, Derek" <dgaub...@imb.org<mailto:dgaub...@imb.org>> wrote: Respectfully, I think you missed the point of Professor Sisk's argument (and mine in the preceding post). The argument is not that religious views are the only ones that matter and that they must triumph over women's health concerns. Instead, the argument was that with just a modicum of effort, a system could very easily have been devised that would have accommodated both health policy concerns and religious liberty interests. (Yes, there might be some government financial cost to such a solution, just as there are to some other accomodationist solutions like providing kosher diets for prisoners or armed forces personn, but that cost has a good return of maintaining harmony among a plural society and respecting the dignity of the individual believer). I've yet to hear a good argument as to why that wouldn be a better outcome. When the government knows that a large number of citizens have strong religious objections to a particular policy, why isn't it better for the government to recognize the religious nature of this portion of its citizenry and achieve its desired policy ends in a way that doesn't subject these citizens to crippling fines for seeking to live their lives in accord with their faith? Grace and peace to you, Derek From: Greg Lipper Sent: Monday, February 17, 2014 6:35 PM To: Law & Religion issues for Law Academics Reply To: Greg Lipper Subject: Re: Notre Dame-- where's the complicit "participation"? Sincerity Professor Sisk’s post epitomizes many of the inaccurate assumptions that led to the enactment of the women’s health provisions in the first place. Let me try to address a few of the most important points: 1. The distinction between “medically-indicated” (non-contraceptive) uses of contraception and “non-medical” uses of contraception is spurious. Put aside for a moment the importance of allowing women to control their own bodies, stay in school, rise in the workplace, etc. Contraception qua contraception is still critical for women’s health (planned pregnancies lead to better prenatal care, and some women have health conditions that make pregnancy dangerous) and for the health of the children (planned pregnancies lead to better prenatal care, and properly spaced pregnancies are better for the children). 2. Even if the medical/non-medical distinction were real, imagine having to go to your HR department for permission to receive coverage for “medically-indicated” uses of contraception. It’s a trifle infantalizing. 3. There is also no such thing as “ordinary contraception” (which Professor Sisk posits can be purchased for $10 a month, leaving medical coverage unnecessary). I’m assuming that Professor Sisk uses that term to refer to the birth-control pill. Other forms of contraception (such as IUD) are far more effective and also much more expensive; their high upfront cost leads many women to choose cheaper and less effective methods. Even if IUD were somehow considered an aspirational luxury, oral contraception isn’t appropriate for some women, for instance due to side effects. So we can’t just send women to CVS sans insurance. 4. Even if oral contraception were the only game in town, $120 a year is nothing to sneeze at, especially for low-wage workers – the very people who already face significant financial barriers to obtaining contraception. 5. Many of the same people who have opposed the contraception-coverage regulations most strenuously would be among the loudest voices opposing a government program to fund/subsidize contraception for women whose employers refused to include it in their health policies. The ACA, which attempted to keep employer-based coverage largely in place, has already been derided as “socialized medicine.” Even if a separate program were politically viable, forcing women with objecting-employers to sign up for a separate, government-run program of contraception coverage is a needless extra burden, is stigmatizing, and makes insurance coverage less seamless for those women. 6. Let’s put aside for a moment that the “abortifacient” label is almost entirely contradicted by modern science (even if you accept that interference with implantation constitutes an abortion). Since opponents of the contraception regs regularly describe the regs as the “abortion pill mandate,” are those opponents – the very organizations representing most of the plaintiffs in these cases – going to turn around and support a government program that uses taxpayer dollars to provide women with “abortion pills”? Don’t bet on it. Implicit in Professor Sisk’s post is that contraception is junior-varsity healthcare, and that it’s okay if there are gaps in contraception coverage or if women are left to fend for themselves to get contraception. That is a dubious policy position, and it was wisely rejected by the political branches. However one comes down on the religious objections that are now being asserted in court, Professor Sisk’s view – that government officials are “gleefully impose[ing] their views on opponents by needless overreach” – makes sense only if you assume that certain people’s religious views are the only views that matter, no matter how much that burden third parties.
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