A post in which I address the "tradition of protecting conscience about abortion" argument in Tom's fine brief for Democrats for Life, and abortion/abortifacients more broadly:
http://balkin.blogspot.com/2014/03/hobby-lobby-part-xii-what-ruling-would.html On Thu, Mar 13, 2014 at 6:20 PM, Berg, Thomas C. <tcb...@stthomas.edu>wrote: > Apropos of two threads: (1) whether this case involves abortion and (2) > whether a limited ruling for Hobby Lobby is possible: > > > > The brief of the Democrats for Life of America and Bart Stupak, on which I > was counsel, is one of the briefs that summarizes evidence on the different > drugs and devices. See > http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-354-13-356_amcu_dfla.authcheckdam.pdf, > at 18-25. I think the evidence is quite plausible that Ella and IUDs could > work to prevent implantation, for the reasons Doug says. There was debate > on this in the FDA advisory committee, and at least one member of the > committee made exactly the same point as below, saying, ""I'll even > concede that the primary mechanism of action [for Ella] might be delayed > ovulation, but not in this group that's five days out from unprotected > intercourse. . . . I can't imagine how we can put all of these numbers > together to say that delayed ovulation explains this continued efficacy [at > five days after intercourse]." See id. at 22 & n.5. Evidence on Plan B > may be growing that it's unlikely to stop implantation (although the FDA > and the government's briefs still say it has that possibility). But at > least as to Ella and IUDs, the objection is quite plausible. > > > > As many know, Congressman Stupak, along with other pro-life Democrats, > supported the Affordable Care Act and provided key votes; several of those > people were then turned out of office because of concentrated campaigns > against them by the main pro-life groups. Neither Stupak nor the Democrats > for Life has it in for the ACA in general. (FWIW, I've also written in > support of the Affordable Care Act, defending many of its other provisions > against criticisms from the main pro-life groups.) > > > > The brief focuses on the issue of abortion and argues that we have a > distinctively strong tradition of protecting conscience on that > matter--recognizing (as we do in other circumstances) the particular burden > from being involved in what the objector regards as the immoral taking of > life--and that this tradition should inform interpretation of RFRA. As to > abortion, more than any other procedure or drug, conscience clauses protect > objectors in the commercial sphere and protect them from indirect > facilitation. The brief argues that under RFRA, this tradition should > extend to objectors to drugs and devices that may plausibly act to prevent > implantation. I'm aware of Marty's argument that in some places, federal > law may define abortion as occurring only after implantation (it does > define pregnancy that way). The brief argues that such a definition should > not set the outer limits of abortion-related accommodation under RFRA. > > > > Beyond the question of whether this case itself involves abortion in a > legally controlling sense ... most of the arguments the government makes here > (that businesses have no free ex rights, that there's no burden on the > employer) would eliminate any challenges to a law that said second-term > abortions must be covered in all insurance policies and that penalized > employers for excluding it or dropping health insurance. And as the > Washington bill I mentioned the other day shows (the bill that passed the > state House), it's quite possible that such laws will be enacted in the > coming years with no exemptions for objecting employers. > > > > Following up on Jim Oleske's question, I agree that in the abortion > context, it is better to protect conscientious objections generally. If > the government refuses to do so, I think it is better to protect religious > objectors, and define religion as broadly as possible, than to protect no > one. > > > > ----------------------------------------- > > Thomas C. Berg > > James L. Oberstar Professor of Law and Public Policy > > University of St. Thomas School of Law > > MSL 400, 1000 LaSalle Avenue > > Minneapolis, MN 55403-2015 > > Phone: (651) 962-4918 > > Fax: (651) 962-4996 > > E-mail: tcb...@stthomas.edu > > SSRN: http://ssrn.com/author=261564 > > Weblog: > http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/mirrorofjustice> > > > ---------------------------------------------------------------------------- > > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu>] > *On Behalf Of *Douglas Laycock > *Sent:* Wednesday, March 12, 2014 10:43 AM > *To:* 'Law & Religion issues for Law Academics' > *Subject:* RE: letter opposing Mississippi RFRA > > > > I don't know what the bishops or the Greens would say, but I don't think > they would object to that. They would not be specifying what you could buy > from the pharmacist. > > > > What they object to is buying a policy that covers a list of items, and > explicitly on the list are items that they believe will kill people. They > contract to put those items on the list; they pay to have those items on > the list; they tempt their employees to use those items by making them > available for free. It's not even a case of giving their employees a choice > of benefits. There are no policy limits under the ACA, so an employee who > chooses a potentially abortifacient drug has not reduced by a penny her > ability to consume other medical care under the same policy. > > > > Their view that these drugs sometimes act by preventing implantation is > entirely plausible, given the FDA label and given the conflicting studies. > Ella is billed as the week-after pill, which is an awfully long time for it > to work with much of a success rate if it works only by preventing > ovulation. Their view that preventing implantation is equivalent to killing > a human being is very far from my view, but it is entirely logical, and it > is a view with enormous moral weight. I really don't think that their > objection is so mysterious or difficult to understand. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu>] > *On Behalf Of *Hillel Y. Levin > *Sent:* Tuesday, March 11, 2014 11:03 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: letter opposing Mississippi RFRA > > > > Doug: > > > > I'm not trying to exaggerate anything. In trying to understand the > doctrine. > > > > Would this be a fair description?: I am your employee. You owe me fifty > dollars for work I've done. You could pay me the money directly, knowing > fully that I might use it to purchase contraception. But I ask you instead > to deposit it directly to my pharmacist. I don't tell you that the > pharmacist will now dispense contraception for me, but you know that I > might. Under the doctrine of complicity you object to depositing the check > with my pharmacist but not with me directly. Is that correct? > > On Tuesday, March 11, 2014, Douglas Laycock <dlayc...@virginia.edu> wrote: > > The line is between benefits that are earmarked for a particular item and > wages that are not. It is between what the employer purchases himself, and > what the employee purchases. > > First you wildly exaggerate their claim, then you say that the exaggerated > claim is ridiculous, then you infer that the actual claim is also > ridiculous. > > Which is not to say that some of the people on the religious fringes, both > left and right, don't make wildly exaggerated claims. But no religious > claimant has ever won on a claim about the use of money paid over without > restriction to someone else. The only claim of that sort I can think of is > claims about paying taxes that the government then spends for immoral > purposes. Zero for however many times they have tried. > > On Tue, 11 Mar 2014 22:17:40 -0400 > Steven Jamar <stevenja...@gmail.com> wrote: > >Still complicit--the employer knows the wages will sometimes be spent on > things the employer dislikes just as much as the employer knows some > employees will use insurance for things the employer dislikes. If the > theory is complicity, that line is a pretty lame one. > > > >Sent from Steve's iPhone > > > > > >> On Mar 11, 2014, at 9:26 PM, "Brad Pardee" <bp51...@windstream.net> > wrote: > >> > >> Because the employee's paycheck is a blank check. The employee can do > whatever they want with it because, as part of the salary, there are no > limits on what the employee can or can't spend the money on. However, > insurance is not a blank check. The policy specifies what it is covering > and what it is not covering and the employer, in determining the range of > the benefits they offer, is fully involved in the decision of what is being > covered and is fully accountable to his or her God for that decision. > >> > >> Brad > >> > >> From: religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin > >> Sent: Tuesday, March 11, 2014 7:36 PM > >> To: Law & Religion issues for Law Academics > >> Subject: Re: letter opposing Mississippi RFRA > >> > >> I have a question for those who have religious beliefs opposed to the > contraception mandate. I do not mean this question as a provocation, but > rather in the interest of helping me to understand the problem. Suppose a > religious employer knows with 100% certainty that an employee will spend a > small amount of her income on contraception. I take it that this does not > violate a religious belief. How is that different from directing a > percentage of the employee's salary towards health insurance, which will > cover contraception? > >> > >> > >> _______________________________________________ > >> 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. > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > _______________________________________________ > 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. > > > > -- > Hillel Y. Levin > Associate Professor > > University of Georgia > School of Law > 120 Herty Dr. > Athens, GA 30602 > (678) 641-7452 > hle...@uga.edu > hillelle...@gmail.com > SSRN Author Page: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 > > > > _______________________________________________ > 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. >
_______________________________________________ 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.
