February 1, 2013
HHS Proposes New Rules on Contraception Coverage, Exempts Religious Employers
HHS today issued proposed new rules on the contraception coverage requirement under the Affordable Care Act, including new exemptions for religious employers. The proposed rules come on the heels of a spate of litigation by religious employers challenging the contraception coverage requirement as violating their religious liberties.
The D.C. Circuit most recently rejected these claims based on the administration's promise to issue new regs exempting religious employers, but the court also retained jurisdiction over the case, holding it in abeyance, to monitor the administration's adoption of new rules. The United States District Court for D.C. similarly recently rejected the claims, but declined to retain jurisdiction and dismissed the case.
According to HHS, the proposed rules allow non-profit religious organizations that object to contraception on religious grounds to side-step the ACA's contraception mandate, but still give employees free access to contraception. Here's how it'll work:
The proposed rules lay out how non-profit religious organizations, such as non-profit religious hospitals or institutions of higher education, that object to contraception on religious grounds can receive an accommodation that provides their enrollees separate contraceptive coverage, and with no co-pays, but at no cost to the religious organization.
With respect to insured plans, including student health plans, these religious organizations would provide notice to their insurer. The insurer would then notify enrollees that it is providing them with no-cost contraceptive coverage through separate individual health insurance policies.
With respect to self-insured plans, as well as student health plans, these religious organizations would provide notice to their third party administrator. In turn, the third party administrator would work with an insurer to arrange no-cost contraceptive coverage through separate individual health insurance policies.
The proposed rules also simplify and clarify the definition of "religious employer" for the purpose of exemption from the contraceptive coverage requirement.
The proposed rules are the first step in issuing new regulations. HHS will collect comments on the rules until April 8, 2013, and then move forward on finalizing them.
Daily Read: Grand Central Station and The Takings Clause
As Grand Central Station celebrates its centennial today, there are many celebrations and discussions, including this excellent one from "Transportation Nation" being aired on some NPR stations, including NYC:
The case to which the report refers is Penn Central Transportation Co. v. New York City (1978), a staple of modern takings clause doctrine and theory. The owner of Grand Central - - - confusingly it was Penn Central - - - wanted relief from the NYC landmarks law which prevented the building of a large office building over Grand Central because it would destroy the historic and aesthetic features of the Grand Central. The United States Supreme Court rejected the takings argument. Writing for the Court, Justice Brennan noted that "the submission that appellants may establish a "taking" simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable." The opinion continued:
"Taking" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action ha effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.
Of course, the Court would vacillate from between this whole vs. fractional approach in subsequent cases, but the most recent takings cases seem to confirm Brennan's view.
For a trenchant discussion of the current state of "air rights" and takings doctrine, take a look at LawProf Troy Rule's Airspace and the Takings Clause, forthcoming in Washington University Law Review, and available in draft on ssrn.
January 31, 2013
Unconstitutional Right to Work?
No sooner had we posted on constitutionalizing right-to-work laws--and Michigan Governor Rick Snyder's certification to the state supreme court certain questions regarding his state's new right-to-work laws--than the Michigan ACLU filed suit in state court arguing that Michigan's laws are unconstitutional.
The ACLU complaint argues that the process of passing the laws violated the state's Open Meetings Act, the state constitutional right to assemble, and the First Amendment. In particular, the ACLU argues that the legislature closed and locked the Capitol to keep out additional protestors as the lame-duck legislature debated and voted on the bills on a super fast track.
The ACLU's legal arguments are different than the questions that Governor Snyder certified to the state supreme court. Governor Snyder's certification appeared to be designed to short-circuit promised litigation against the laws--on the merits. But the ACLU is now challenging the laws on the process. This suit, if not similarly short-circuited and if successful, could hold up implementation of the law, notwithstanding Governor Snyder's certified questions yesterday.
Daily Read: Colbert on DOMA Arguments (and Cleburne)
Law students (and future law students) are watching this on The Colbert Report:
(h/t Chase Vine)
January 30, 2013
Constitutionalizing Right to Work
Just a month after Michigan passed so-called "right-to-work" legislation--and became the 24th state to prohibit requiring employees to join a union or pay equivalent fees in a union shop--legislatures in Iowa and Virginia both upped the ante and took up provisions to amend their state constitutions to include right to work. (The Virginia measure now appears dead.)
These aren't the first states to move to constitutionalize right to work. Arizona has a state constitutional right-to-work provision:
Article XXV Right to Work. Right to work or employment without membership in labor organization.
No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall the State or any subdivision thereof, or any corporation, individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.
Article I, Section 6: Right to work.
The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.
Michigan Governor Rick Snyder (R) is taking a different tack in relation to his state's constitution: he has asked the state supreme court to issue an advisory opinion on the constitutionality of the state's recently enacted right-to-work laws. The questions: whether the new right-to-work law for the public sector interferes with the Civil Service Commission's constitutional authority, thus nullifying the law as applied to the classified state civil service; and, if so, whether the laws violate equal protection (by treating the classified civil service differently than everyone else). There's another question: whether the new laws violate state constitutional provisions stating that a bill can't be amended to change its original purpose and that bills have to meet certain procedural requirements (including sitting in each house for at least five days, and read three times).
Snyder's move appears to be designed to short-circuit promised legal actions to halt or delay the implementation of the bills. Getting a favorable ruling from the state supreme court would allow Snyder to implement the laws immediately.
January 28, 2013
District Court Dismisses Archbishop's Contraception Challenge
Judge Amy Berman Jackson (D.D.C.) on Friday dismissed the Roman Catholic Archbishop of Washington's challenge to the HHS regs pursuant to the Affordable Care Act that required insurers to provide coverage for preventive care, including contraception, for women. The ruling comes on the heels of the D.C. Circuit's ruling just last month that a similar challenge was not ripe.
Judge Jackson cited the D.C. Circuit ruling, Wheaton College v. Sebelius, and ruled that the Archbishop's challenge was similarly not ripe. (Recall that the D.C. Circuit reasoned that HHS committed to changing its regs, so that the contraception requirement wouldn't cover the religious employer in that case.) The D.C. Circuit wrote, "We take the government at its word and will hold it to it." So too Judge Jackson.
Unlike the D.C. Circuit, however, Judge Jackson did not hold the case in abeyance. Instead, she outright dismissed it, writing that the Archbishop could bring a new case if and when the government enforced a contraception mandate against it.
Daily Read: Commentary on the Canada Supreme Court's R. v. N.S. ("the niqab case")
Last month's long-awaited decision in R. v. N.S. by the Canada Supreme Court considered whether or not a witness in a criminal trial had a religious right to wear a niqab during testimony.
The Court's fractured and ultimately unsatisfying decision has prompted some excellent commentary. A quick round-up from Sonia Lawrence at the Institute for Feminist Studies at Osgoode Hall on the day of the decision has been followed by more discussion.
Canadian ConLawProf Beverley Baines has an excellent commentary over at Jurist. Professor Baines provides an excellent synopsis of the case and situates it within Canadian constitutional jurisprudence. She focuses on the Court's analogy between wearing the niqab and publication ban precedent. Importantly, she also raises a central question raised by the particular facts in N.S.:
Identity is a complex matter in R. v. N.S.. Given that the accused assailants were her uncle and cousin, they knew the identity of the testifying victim. From N.S.'s perspective, her identity as a Muslim woman was threatened by the niqab ban. Her faith requires her to cover her face in the presence of men who are not members of her immediate family. Removing her niqab would rob her of her religious identity just as would depriving a Jewish man of his kippah, a Sikh of his turban or an Amish of his hair. Nor is the link between the niqab and the presumption of innocence transparent, despite the chief justice's repeated reference to the niqab portending a wrongful conviction. If the niqab is such a serious impediment, might wearing it not result in a wrongful acquittal?
Professor Natasha Bakht of the University of Ottawa Faculty of Law made a similar argument over at Blogging for Equality earlier this month, stressing the relationship between religious freedom and gender equality in Canadian constitutionalism:
The majority’s decision in NS while keeping the door open for Muslim women to wear the niqab while testifying in certain situations, did not adequately consider NS’s equality or section 7 rights. Indeed the word equality never appears in the decision! To frame NS’s claim as only rooted in religious freedom is to fundamentally misconstrue the intersectional nature of the issue at stake. NS is a sexual assault complainant. Asking a niqab-wearing woman to remove her veil is like asking her to remove her skirt or blouse in court. It is, literally, to strip her publicly and in front of her alleged perpetrators. We know that sexual assault is one of the most underreported crimes in Canada. Prohibitions on wearing the niqab while giving testimony will only discourage Muslim women from participating in the justice system.
Finally, Stephanie Voudouris at The Court attempts to "peel back" the layers of the case, again focusing on sexual assault and religious freedom, but also considering demeanor evidence. Voudouris' discussion is lengthy and provides a solid and objective overview of the case. But in the end, Voudouris offers a conclusion similar to Baines and Bakht, criticizing the
skewed scale on which the Court balances the harms to trial fairness against the harms to freedom of religion; a scale that may lead lower courts to ban the veil more often than not. Aside from the difficulties with the Court’s attempts to understand freedom of religion generally, this case provokes controversy because, in the words of Justice Abella, the Court is deciding these issues against the backdrop of questions about “whether the niqab is mandatory for Muslim women or whether it marginalizes the women who wear it; whether it enhances multiculturalism or whether it demeans it”, and of whether these global questions matter when a single woman comes before the court to testify against those who have assaulted her, and asks to do so in accordance with her religious beliefs.The majority opinion seemingly leaves wide discretion to the trial judge. It will be illuminating to learn what the judge in N.S. - - - and in other cases - - - ultimately decides.
January 27, 2013
Japan Voters Split in Poll on Revising Pacifist Constitution
Voters in Japan are evenly split on revising Article 9 of the country's constitution--the article that requires a pacifist state--according to Reuters, citing a survey by the Asahi newspaper and a University of Tokyo research team.
The survey doesn't appear to foretell an actual constitutional amendment, although Reuters notes that nearly 90% of MPs favor a change to Article 9.
The constitution of Japan has never been formally altered since U.S. occupation forces drafted it in 1947. Article 9 reads:
Renunciation of War. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.
In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.
Although Article 9 by its plain terms seems to ban standing forces, Japan has dispatched troops for peacekeeping and non-combat reconstruction missions.
Under Article 96, an amendment requires a two-thirds vote in each house of the Diet and a majority vote in a national referendum.
D.C. Circuit Vacates al Bahlul's Military Tribunal Conviction
The D.C. Circuit on Friday vacated a military commission conviction of Ali Hamza Ahmad Suliman al Bahlul for material support, conspiracy, and solicitation, according to Lawfare and others. (Thanks to Lawfare for the links.) The ruling came after the government filed a supplemental brief a couple weeks ago arguing that the D.C. Circuit's ruling in Hamdan ("Hamdan II") compelled the court to vacate the ruling, but also disagreeing with the court's reasoning in Hamdan II. (The government made the latter point in order to preserve the argument for appeal.)
Recall that the D.C. Circuit vacated Hamdan's military commission conviction for "material support for terrorism" in October 2012. The court ruled that the Military Commissions Act of 2006, which criminalized material support, did not apply to acts before 2006, and that the government's other authority, 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war" didn't apply, because material support wasn't a violation of international law of war.
The government argued that Hamdan II compelled the court to vacate al Bahlul's conviction, too. But it also went on to argue that the D.C. Circuit was wrong in Hamdan II, preserving that argument for appeal.
The D.C. Circuit agreed and, referencing the government's supplemental brief, on Friday issued a one-page per curiam ruling vacating al Bahlul's conviction.
Seidman on Constitutional Disobedience
ConLawProf Louis Michael Seidman (Georgetown) shared a thumb-nail version of his "constitutional disobedience" at CBS Sunday Morning. Drawing on dead-hand, anti-democratic, and pragmatic arguments, he contends that constitutional disobedience has both a history (as when past presidents have acted against the Constitution) and a virtue (as when we might ignore election results that would allow a presidential candidate rejected by the majority of Americans to assume office). He also says that the better way to approach the document is as an inspiration, not a set of commands.
Here's his example from the gun control debates:
But what happens when the issue gets Constitutional-ized? Then we turn the question over to lawyers, and lawyers do with it what lawyers do. So instead of talking about whether gun control makes sense in our country, we talk about what people thought of it two centuries ago.
Worse yet, talking about gun control in terms of constitutional obligation needlessly raises the temperature of political discussion. Instead of a question on policy, about which reasonable people can disagree, it becomes a test of one's commitment to our foundational document and, so, to America itself.
For the full version, check out Seidman's new book, On Constitutional Disobedience (OUP).