Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne triggered by hormonal shifts? 4. Can employers successfully invoke RFRA to follow their religious beliefs against women working outside the home, and therefore scale salaries to deincentivize women and drive them from the workplace. 5. Can an employer successfully invoke RFRA to follow their religious beliefs and fire any female employee who obtains an abortion (which is consistent w her religious beliefs)? All thoughts on these hypotheticals would be greatly appreciated as we work through this important issue for religious business owners and women. Happy Thanksgiving all-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Nov 27, 2013 12:20 am Subject: RE: Patently Frivolous and discrimination But why would that turn a serious argument into a “patently frivolous” one? Both nonprofits and for-profits are engaged in monetary transactions. (U.S. v. Lee talked of people “enter[ing] into commercial activity as a matter of choice,” but education, as we all know, is a commercial activity whether carried on by non-profit institutions or for-profit ones.) Both choose to participate in such transactions. When either discriminates, this has an effect on third parties whom the law is trying to protect. Also, as Chip pointed out, Braunfeld v. Brown involved for-profit businesses, and no-one on the Court thought a free exercise claim brought by them was patently frivolous. And I should also add that the unemployment compensation claimants were also engaged in the commercial marketplace, selling their own labor for profit. The Court has never drawn a for-profit vs. nonprofit line when it comes to religious freedom claims, and though Lee hinted at a marketplace transaction vs. other conduct line, the Court hasn’t generally followed such a line (and in any event Lee ultimately applied the strict scrutiny test, rather than concluding that the marketplace transactions kept that test from being applicable). Likewise, to my knowledge lower courts have not drawn such a line. Eugene *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu?] *On Behalf Of *James Oleske *Sent:* Tuesday, November 26, 2013 6:13 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Patently Frivolous and discrimination But Bob Jones University is a nonprofit, which the Supreme Court noted at the beginning of its opinion, and we're
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.net wrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne triggered by hormonal shifts? 4. Can employers successfully invoke RFRA to follow their religious beliefs against women working outside the home, and therefore scale salaries to deincentivize women and drive them from the workplace. 5. Can an employer successfully invoke RFRA to follow their religious beliefs and fire any female employee who obtains an abortion (which is consistent w her religious beliefs)? All thoughts on these hypotheticals would be greatly appreciated as we work through this important issue for religious business owners and women. Happy Thanksgiving all-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Nov 27, 2013 12:20 am Subject: RE: Patently Frivolous and discrimination But why would that turn a serious argument into a “patently frivolous” one? Both nonprofits and for-profits are engaged in monetary transactions. (U.S. v. Lee talked of people “enter[ing] into commercial activity as a matter of choice,” but education, as we all know, is a commercial activity whether carried on by non-profit institutions or for-profit ones.) Both choose to participate in such transactions. When either
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
The government *is *relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contraception would have violated federal law *before *the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), *available at* http://www.eeoc.gov/policy/docs/decision- contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see *In re Union Pacific R. Employment Practices Lit.*, 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.netwrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne triggered by hormonal shifts? 4. Can employers successfully invoke RFRA to follow their religious beliefs against women working outside the home, and therefore scale salaries to deincentivize women and drive them from the workplace. 5. Can an employer successfully invoke RFRA to follow their religious beliefs and fire any female employee who obtains an abortion (which is consistent w her religious beliefs)? All thoughts on these hypotheticals would be greatly appreciated as we work through this important issue for religious business
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
Chip-- it might be a standing issue regarding the religious discrimination but I still think it has legs because, eg, a Presbyterian is having her job benefits limited solely according to religion that she doesn't share, in contravention of both economics and health standards. Shaping a compensation package to reflect one religion strikes me as similar the argument raised by the woman who challenges the employer who forbids the wearing of a headscarf. Why doesn't a woman's religious beliefs that require family planning and even abortion particularly where her health and life are implicated have a Title VII claim? How is this different from the woman who demands the right to wear a headscarf on the reasoning of those who back RFRA and expansive religious liberty? On another extremely important pr-- I would also point out that benefits law is relevant here and not yet mentioned by anyone -- employers are under a fiduciary duty to handle their employees health benefits plans solely for the benefit of the employees. If they cannot do so for ethical or other reasons, they must step aside and put the benefits into the hands of a fiduciary who will handle the benefits in the interest of the employees. This attempt to imprint their benefits compensation package according to their religion is a violation of their fiduciary duty. I wonder whether the lawyers for the companies involved or the bishops are advising these companies that they are teeing themselves up for potentially ruinous lawsuits by female employees for breach of fiduciary duty and explicit gender discrimination? On this point-- the least restrictive means is to appoint an outside plan administrator. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.net wrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
Marty- one addition --women will also have to pay for oral contraceptives to stop excessive bleeding, cramps, and hormone- triggered acne. I think this discussion needs to factor in the medical uses beyond contraception for millions of women over the course of their lives. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 11:44 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government is relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contraception would have violated federal law before the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), available at http://www.eeoc.gov/policy/docs/decision-contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see In re Union Pacific R. Employment Practices Lit., 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.net wrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
An initial response to the sex discrimination question: does an employer engage in sex discrimination by refusing to fund (or provide insurance covering) sterilization services, as required by the ACA? Mark Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Ira Lupu icl...@law.gwu.edu Date: 11/27/2013 8:14 AM (GMT-08:00) To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.commailto:hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne triggered by hormonal shifts? 4. Can employers successfully invoke RFRA to follow their religious beliefs against women working outside the home, and therefore scale salaries to deincentivize women and drive them from the workplace. 5. Can an employer successfully invoke RFRA to follow their religious beliefs and fire any female employee who obtains an abortion (which is consistent w her religious beliefs)? All thoughts on these hypotheticals would be greatly appreciated as we work through this important issue for religious business owners and women. Happy Thanksgiving all-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Volokh, Eugene vol
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
This may or may not be relevant to the constitutional question, but I think it's likely that the religious employers in these cases would not object to providing coverage for those medications if prescribed for non-contraceptive purposes (because contraception would be a secondary effect). Mark S. Scarberry Pepperdine University School of Law Marci Hamilton wrote: Marty- one addition --women will also have to pay for oral contraceptives to stop excessive bleeding, cramps, and hormone- triggered acne. I think this discussion needs to factor in the medical uses beyond contraception for millions of women over the course of their lives. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton Sent from my Verizon Wireless 4G LTE Smartphone ___ 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.
RE: Discrimination under Title VII and RFRA (was Patently Frivolous)
In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says, they are less expensive and pose a lower risk of complications than female surgical sterilization methods. Plus, he says, waiving co-payments for services for one sex but not the other raises issues of discrimination. - 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 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Wednesday, November 27, 2013 10:12 AM To: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
There is at least one district court decision upholding the EEOC's view of the PDA. See Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1271-72 (W.D. Wash. 2001): Having reviewed the legislative history of Title VII and the PDA, the language of the statute itself, and the relevant case law, the Court finds that Bartell's exclusion of prescription contraception from its prescription plan is inconsistent with the requirements of federal law. The PDA is not a begrudging recognition of a limited grant of rights to a strictly defined group of women who happen to be pregnant. Read in the context of Title VII as a whole, it is a broad acknowledgment of the intent of Congress to outlaw any and all discrimination against any and all women in the terms and conditions of their employment, including the benefits an employer provides to its employees. Male and female employees have different, sex-based disability and healthcare needs, and the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception. The special or increased healthcare needs associated with a woman's unique sex-based characteristics must be met to the same extent, and on the same terms, as other healthcare needs. Even if one were to assume that Bartell's prescription plan was not the result of intentional discrimination, the exclusion of women-only benefits from a generally comprehensive prescription plan is sex discrimination under Title VII. Title VII does not require employers to offer any particular type or category of benefit. However, when an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes. In light of the fact that prescription contraceptives are used only by women, Bartell's choice to exclude that particular benefit from its generally applicable benefit plan is discriminatory. Marty is correct that the government is relying on women's equality, but their brief to the Tenth Circuit did not invoke Title VII, the PDA, the EEOC interpretation, or Erickson in support of the equality interest. In retrospect, that strikes me as a big oversight. But I must admit that I hadn't thought of the argument until one of my seminar students made it in a paper they are writing about Hobby Lobby. On Wed, Nov 27, 2013 at 8:44 AM, Marty Lederman lederman.ma...@gmail.comwrote: The government *is *relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contraception would have violated federal law *before *the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), *available at* http://www.eeoc.gov/policy/docs/decision- contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see *In re Union Pacific R. Employment Practices Lit.*, 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? ___ To post, send message to Religionlaw@lists.ucla.edu To
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
I certainly hope they will rely on these statutes which are evidence of (1) the ingrained and ongoing persistence of gender discrimination across society and in private institutions; (2) the need to be vigilant as these hard-fought rights can be compromised at any time; and (3) this religious liberty argument is in fact an argument that necessarily disables women's equality and bodily integrity. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, James Oleske jole...@lclark.edu wrote: There is at least one district court decision upholding the EEOC's view of the PDA. See Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1271-72 (W.D. Wash. 2001): Having reviewed the legislative history of Title VII and the PDA, the language of the statute itself, and the relevant case law, the Court finds that Bartell's exclusion of prescription contraception from its prescription plan is inconsistent with the requirements of federal law. The PDA is not a begrudging recognition of a limited grant of rights to a strictly defined group of women who happen to be pregnant. Read in the context of Title VII as a whole, it is a broad acknowledgment of the intent of Congress to outlaw any and all discrimination against any and all women in the terms and conditions of their employment, including the benefits an employer provides to its employees. Male and female employees have different, sex-based disability and healthcare needs, and the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception. The special or increased healthcare needs associated with a woman's unique sex-based characteristics must be met to the same extent, and on the same terms, as other healthcare needs. Even if one were to assume that Bartell's prescription plan was not the result of intentional discrimination, the exclusion of women-only benefits from a generally comprehensive prescription plan is sex discrimination under Title VII. Title VII does not require employers to offer any particular type or category of benefit. However, when an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes. In light of the fact that prescription contraceptives are used only by women, Bartell's choice to exclude that particular benefit from its generally applicable benefit plan is discriminatory. Marty is correct that the government is relying on women's equality, but their brief to the Tenth Circuit did not invoke Title VII, the PDA, the EEOC interpretation, or Erickson in support of the equality interest. In retrospect, that strikes me as a big oversight. But I must admit that I hadn't thought of the argument until one of my seminar students made it in a paper they are writing about Hobby Lobby. On Wed, Nov 27, 2013 at 8:44 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government is relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contraception would have violated federal law before the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), available at http://www.eeoc.gov/policy/docs/decision-contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see In re Union Pacific R. Employment Practices Lit., 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
Tom-- they are not opposed to the Pill? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says, they are less expensive and pose a lower risk of complications than female surgical sterilization methods. Plus, he says, waiving co-payments for services for one sex but not the other raises issues of discrimination. - 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 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Wednesday, November 27, 2013 10:12 AM To: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women
RE: Discrimination under Title VII and RFRA (was Patently Frivolous)
They are not. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, November 27, 2013 12:32 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) Tom-- they are not opposed to the Pill? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says, they are less expensive and pose a lower risk of complications than female surgical sterilization methods. Plus, he says, waiving co-payments for services for one sex but not the other raises issues of discrimination. - 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 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com -- -- From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Wednesday, November 27, 2013 10:12 AM To: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
So how does it work? The women need pre approval from their boss? And I thought the bishops oppose the Pill and these are devout Catholics. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:46 PM, Douglas Laycock dlayc...@virginia.edu wrote: They are not. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, November 27, 2013 12:32 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) Tom-- they are not opposed to the Pill? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says, they are less expensive and pose a lower risk of complications than female surgical sterilization methods. Plus, he says, waiving co-payments for services for one sex but not the other raises issues of discrimination. - 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 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com -- -- From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun
RE: Discrimination under Title VII and RFRA (was Patently Frivolous)
The owners of Hobby Lobby are Protestants. The owners of Conestoga Wood are Mennonites. They are opposed to abortion. They object to drugs or devices that may work post-fertilization. They are not opposed to contraception that works, certainly and exclusively, by other mechanisms. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, November 27, 2013 1:10 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) So how does it work? The women need pre approval from their boss? And I thought the bishops oppose the Pill and these are devout Catholics. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:46 PM, Douglas Laycock dlayc...@virginia.edu wrote: They are not. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, November 27, 2013 12:32 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) Tom-- they are not opposed to the Pill? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
The medications which are normally prescribed for birth control purposes, which we commonly call contraceptives, also have other uses, which uses may be perfectly harmonious with Catholic teaching. I am not aware of any prescription drug plan offered through a Catholic organization that does not cover such drugs for those uses; that's not to say they don't exist, but I am not aware of them. The drugs are prescribed the same way any drug is prescribed (i.e., no pre-approval by anyone), but the doctors and patients know/should know that they are only for those purposes, and not for contraceptive purposes. Enforcement of that understanding is of course variegated. The Catholic objection to the contraceptive mandate, then, as I understand it, has nothing to do with medications that are medically prescribed for medical conditions, but to medications prescribed as contraceptives (i.e, for voluntary lifestyle choices). I'd be happy to be corrected on any of this. Richard Dougherty University of Dallas On Wed, Nov 27, 2013 at 12:09 PM, Marci Hamilton hamilto...@aol.com wrote: So how does it work? The women need pre approval from their boss? And I thought the bishops oppose the Pill and these are devout Catholics. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ 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.
