Michael McConnell has a post on Volokh Conspiracy addressing some of the issues that came up at the Hobby Lobby oral argument: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/27/prof-michael-mcconnell-stanford-on-the-hobby-lobby-arguments/
There’s a lot to discuss in his post, but I’d like to focus on his points about the parade of horribles – in particular, that we needn’t worry about Hobby Lobby creating precedent that deprives employees of other forms of healthcare that were discussed at oral argument and in the briefs. There are, I suppose, specific arguments one could make about other forms of healthcare (Clement and McConnell both mentioned the herd-immunity justification for vaccines, for instance); and of course one can always argue more generally that each case will be evaluated on its own merits – but of course, the prior cases create precedent that is binding on the future cases and compels the same outcome in similar situations. But let’s assume for a moment that Professor McConnell is right – that courts will figure out some way to distinguish contraception from other forms of healthcare – such as psychiatric care, blood transfusions, vaccines, and prescription drugs covered in pork-based gelatin – to which other employers’ owners might have religious objections. This type of reasoning really seems to reinforce the mistaken view that somehow contraception coverage (or healthcare related to women’s reproductive needs) is not “real” healthcare, and relatedly that sexuality-based objections of certain Christians to certain forms of healthcare are more important than other religious-based objections to healthcare that does not implicate issues of sexuality and gender. (Clement made a similar point at oral argument, attempting to distinguish contraception on the ground that it’s "so religiously sensitive, so fraught with religious controversy.”) If we are uncomfortable – as we all seem to be – with allowing a company to deprive employees of coverage for vaccinations, gelatin-covered pills, psychiatric care, or blood transfusions on the basis of its owner’s religious beliefs, then the proper outcome is to prevent companies from depriving their employees of *any* required insurance coverage – not to strain to reach a result that imposes unique burdens on care important to women and reproductive autonomy. Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church & State (202) 466-3234 x210
_______________________________________________ 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.
