Marty’s last point seems telling. If the object were to reduce abortions, then one should favor contraception being readily and inexpensively available. If one wants to avoid complicity in abortions, then one should support contraception. But, where the complicity includes something one has religious objections to, i.e., contraception at all, then providing contraception is the evil with which one is complicit, not abortion.
I cannot predict how the court will decide these issues. Will it decide them as abortion cases in which case the substantive argument runs Marty’s way? Or contraception cases in which case going back to Griswold we have that liberty. Or will it say, as it has in other contexts, that the right to do something does not include the right to have someone else pay for it (that someone else being in those cases the government)? Or will it say that the liberty interest of the individuals is not relevant at all — just the liberty interests of the religious employers? Or will it take a power-of-Congress tack and say that the given the widespread use of accommodations and exclusions favoring religion all over the place the omission of one in this instance means that Congress has decided there is no substantial burden? Or will it take a straight RFRA approach and decide whether the complicity theory in this attenuated setting simply cannot be treated as a substantial burden because it does not stop any affirmative exercise by anyone or because believing what you want cannot be regulated, but practicing those beliefs can be (going back to Reynolds), even in the light of RFRA? Or will it find this complicity theory a substantial burden (despite the lack of impact on practical exercise) and then try to sort out the compelling interest (this should be one — reducing abortions, universal health coverage) and the least restrictive alternative? It seems to me that the least restrictive alternative here ends up being just what is being done now — though I understand the form of the argument of having the government supply it — but the employer is still just as complicit — just a change in who provides it — a private insurance company or the government. Will there be a majority in this case? Or splintered opinions with splintered rationales and just a bag of facts with a result? (apologies to whomever I stole that description from — I don’t recall who said it). Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ "The modern trouble is in a low capacity to believe in precepts which restrict and restrain private interests and desires." Walter Lippmann On Mar 14, 2014, at 9:50 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > 10. On the other hand, and as long as we're on the subject of preventing > abortions, one of the principal benefits of the HHS Rule -- as the Guttmacher > brief explains (see pp. 23-25) -- is that it will dramatically decrease the > incidence of what everyone agrees are abortions (the result in 40% of > unintended pregnancies). And in a substantially greater number of cases than > that, the Rule will spare women being confronted with the decision whether or > not to have abortion -- a choice that can be agonizing for many employees > with strong religious or other moral views about abortion. As Walter > Dellinger wrote in the Guttmacher brief: > In these cases, the shifting of a burden to third parties would involve even > more than economics and personal health, as significant as they are. Denying > coverage of the most effective methods (or, in some cases, all methods) of > contraception leads predictably and directly to unintended pregnancies. > Removing the contraceptive coverage guarantee would place some women with > religious objections to abortion in what is for them a morally difficult > position: they might desire but be unable to afford the most reliable methods > of contraception and therefore be at increased risk for confronting an > unintended pregnancy and the difficult decisions that ensue. For all women, > denying practical access to the method of contraception that is right for > their health and life circumstances and the well-being of their families can > represent a most serious incursion into their individual moral autonomy and > the course of their lives. > > It seems to me, therefore, that for Justices and others who are genuinely > concerned about reducing the number of abortions, and about accommodating > religious and other moral concerns about abortion more generally, affording > RFRA exemptions in these cases is hardly the most attractive option.
_______________________________________________ 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.
