Monday, September 29, 2014
Corey Ciocchetti, Denver (Business School), has uploaded to SSRN "Religious Freedom and Closely Held Corporations: The Hobby Lobby Case and Its Ethical Implications." The abstract reads:
Hobby Lobby and its quest for religious freedom captured the attention of a nation for a few moments in late June 2014. The country homed in on the Supreme Court as the justices weighed the rights of an incorporated, profit-making entity run by devout individuals that objected to particular entitlements granted to women under the Affordable Care Act. The case raised important legal issues such as whether the law allows for-profit corporations to exercise religion (yes!) and whether protection for religious freedom trumps the rights of third parties to cost free preventive care (sort of!). The Supreme Court’s decision also brought to light some major ethical dilemmas such as: (1) whether the government has the right to second-guess a person’s religious beliefs, (2) when do religious beliefs become too attenuated from the actions they oppose to truly pose a burden on religion and (3) whether religion can only be experienced by human beings. Though the lawyers will move on to the next legal challenge, Americans in general must continue to grapple with these ethical dilemmas as citizens of a society needing to find the appropriate balance between religious freedom and improving public heath.
This article attempts to answer some of these questions by evaluating the Hobby Lobby case from many different angles. Part II recounts the stories underlying the legal challenge. These stories, often-neglected in law review articles and judicial opinions, when told in depth add context and nuance to the case and help bring to life topics that seem boring if analyzed purely in legalese. For example, the Greens tell a story of a family who consider their work at Hobby Lobby to fulfill their calling from God. They sincerely believe they are expected to practice their religion at work even if it costs the corporation, and themselves personally, a great deal of money. The federal government tells the story of a nation in desperate need of better and less expensive health care options -- particularly for women. The government claims that women need cost-free preventive care (and particularly cost-free contraceptives) in order to improve their health and reduce unwanted pregnancies. Better access to contraceptives will also give women more power to control their reproductive lives and compete more effectively in the workplace. Part II brings these litigants to life and sets the stage for a discussion of the law in Part III and the application of the law to these parties in Part IV.
More specifically, Part III synthesizes the state of the law surrounding religious freedom and preventive health care at the time the Hobby Lobby case hit the Supreme Court. The article recounts the history of religious freedom in America and how this concept worked its way into the first words of the First Amendment and eventually into the very broadly protective Religious Freedom Restoration Act. This part ends with an evaluation of the ACA’s contraceptive mandate and its requirements regarding access to cost free preventive care for women.
Part IV evaluates the court decisions in the Hobby Lobby case. The discussion begins with the District Court’s denial of Hobby Lobby’s request that mandate be stayed and ends with the Supreme Court’s decision issued on the last day of its October 2013 term. All in all, the discussion moves with the case from a federal district court (where Hobby Lobby asked for a preliminary injunction) to the Tenth Circuit Court of appeals (where that decision was affirmed) to the United States Supreme Court (where Hobby Lobby’s appeal was summarily denied) back to the Circuit Court sitting en banc (where the district court was urged to issue the preliminary injunction) back to the district court (where the judge reversed himself and issued the injunction) and finally to the Supreme Court (where Hobby Lobby emerged victorious). This part summarizes the lower court decisions and evaluates the Supreme Court decision in detail, section by section.
Part V, the final substantive part of the article, begins with the statement that the Court reached the correct legal decision in the case considering: (1) the important place religious exercise holds in the fabric of America, today and historically, (2) the broad brush with which Congress painted RFRA and (3) the fact that Hobby Lobby’s employees will still receive all twenty FDA-approved contraceptives at no cost. The discussion then moves to the ethical issues spun off by the Supreme Court decision. The three ethical dilemmas chosen for analysis revolve around the questions of whether corporations can exercise religion, whether it is ethical for religion to trump third party rights and whether governments have any business analyzing the beliefs of a religious adherent in order to better craft public policy.
The article concludes with a call for further research into potential answers to these and other ethical dilemmas keeping in mind that Hobby Lobby is just the first shoe to drop in the fight between religious freedom and parts of the Affordable Care Act.
Saturday, July 12, 2014
[T]he US supreme court's Hobby Lobby decision left most women's groups livid. Terry O'Neill, president of the National Organization for Women, called it "a shocking disregard for women's health and lives." The co-president of the National Women's Law Center, Marcia Greenberger, said the ruling gave companies "a license to harm their female employees in the name of religion."
But the Independent Women's Forum (IWF) - a conservative women's group with at least a quarter-million dollars in financial ties to Rush Limbaugh - called the decision "undoubtedly good news". The group's director of cultural programs, Charlotte Hays, told a crowd outside the court, "This is a great day," and called the ruling a victory "for anyone who believes in freedom of conscience." This from the same woman who has written that women shouldn't be astronauts and that rape culture on college campuses is all "inflated numbers" and "hysteria".
This latest crop of female anti-feminists - powerful, Washington-based organizations like IWF and Concerned Women for America - want to repeal the Violence Against Women Act and argue that pay inequity doesn't exist. These organizations, along with a handful of popularwriters and authors, want to convince women that it's men who are the underserved sex. They want to convince you that inequality is just a trade-off.
Thursday, July 10, 2014
Yes, still more on Hobby Lobby. For women, this is a game-changing decision with both significant legal and practical consequences. It's not going to go away quietly.
Congress takes action. NYT, Democrats Push Bill to Reverse Supreme Court Ruling on Contraceptives
Saturday, July 5, 2014
Of interesting note in these and other articles on Justice Sotomayor's dissent is the journalistic choice of words used to describe the decision: searing, fierce, outraged, scold, women get together
The White House released a new report from the Council of Economic Advisors on Wednesday, detailing the healthcare and economic impact of refusing to accept Medicaid expansion, as 24 states have. Bottom line, it's 5.7 million people who would qualify for Medicaid, but be uninsured by 2016, "and these states will forgo billions in federal dollars that could boost their economies."....
But there's another part of the story that Think Progress picks up: the refusal to expand Medicaid has a hugely disproportionate effect on women.
Tuesday, June 3, 2014
Sarudzayi Matambanadzo (Tulane), has posted The Fourth Trimester, U. Mich. J. Law Reform (2014). From the abstract:
This article introduces a new conceptual framework to the legal literature on pregnancy and pregnancy discrimination: the fourth trimester. The concept of a fourth trimester, drawn from maternal nursing and midwifery, refers to the crucial period of three to six months after birth when many of the physical, psychological, emotional, and social effects of pregnancy continue. Giving this concept legal relevance extends the scope of pregnancy beyond the narrow period defined by conception, gestation, and birth, and acknowledges that pregnancy is a relational process, not an individual event. In the United States, however, anti-discrimination law has failed to acknowledge the demands of the fourth trimester; it operates from the presumption that pregnancy begins at conception and ends with the birth of the infant. Without employing a fourth trimester framework, the current federal anti-discrimination regime will continue to permit discrimination against women in relation to pregnancy because employers can discriminate on the basis of activities which typify the fourth trimester of the pregnancy. It is time for judges, administrative actors, movement lawyers, and other policy makers to recognize that discrimination on the basis of fourth trimester activities like breastfeeding, caring for newborn infants, or recovery constitute pregnancy discrimination that should be prohibited by law.
Tuesday, May 20, 2014
From NY Times, Labs are Told to Start Including a Neglected Variable
From Slate, Why Are All the Lab Rats Boys?
And why we need feminist science.
You can think of feminist biology as having two components. First, it identifies gender bias in traditional biology and alerting students and scientists to possible gender bias. Scientists want, in general, to be not biased, so in a way this is just improving biology, right? Another part is constructing new theories and new research that does away with these biases and leads to a more balanced biology that takes women into account.
Thursday, May 15, 2014
Nancy Ehrenreich has uploaded an article, "Breastfeeding on a Nickel and a Dime: Why the Affordable Care Act Won't Help LowWage Mothers." It's forthcoming from the Michigan J. of Race and Law and its abstract reads:
As part of the Patient Protection and Affordable Care Act of 2010 (also known as “Obamacare”), Congress passed a new law requiring employers to provide accommodation to working mothers who want to express breast milk while at work. This accommodation requirement is a step forward from the preceding legal regime, under which federal courts consistently found that “lactation discrimination” did not constitute sex discrimination. But this article predicts that the new law will nevertheless fall short of guaranteeing all women the ability to work while breast feeding. The generality of the act’s brief provisions, along with the broad discretion it assigns to employers to determine the details of the accommodation to be provided, make it likely that class- and race-inflected attitudes towards both breast feeding and women’s roles will influence employer (and possibly judicial) decisions in this area. Examining psychological studies of popular attitudes towards breast feeding, as well as the history of women’s relationship to work, the author concludes that the influence of cultural attitudes on interpretations of the Act is likely to have a disparately negative impact on low-income women, perhaps especially those who are African-American. In short, the new law is likely to help produce a two-tiered system of breast feeding access, encouraging employers to grant generous accommodations to economically privileged women, while increasing the social pressure on low-income women to breast feed, without meaningfully improving their ability to do so.
More from this month's guest blogger, Professor Jamie Abrams from the University of Louisville School of Law. Her scholarly interests include integrating masculinities theory in feminist law reforms such as military integration and domestic violence; examining the tort complexities governing standards of care in childbirth; gendered conceptualizations of citizenship; and legal education pedagogy.
This Huffington Post piece by Chelsea Carmona, Criminalizing Good Maternal Health Care in Tennessee, highlights the troublesome gendered dimensions of Tennessee’s new law criminalizing drug use during pregnancy. Tennessee’s bill takes effect on July 1st and is the first law of its kind in the United States. The Huffington Post piece notes gendered differences in women’s patterns of drug addiction, describes critical gaps in care for pregnant women in substance abuse programs, and summarizes concerns anticipating the disproportionate prosecution of pregnant women of color, particularly rural women.
What is perhaps most striking about Tennessee’s law is its enactment against such an overwhelming volume of dissent from diverse stakeholders in law, medicine, and social services. Implementation of the bill is especially complex when considered in the context of tort law. As noted, it remains uncertain how a doctor could navigate the duty of care owed to the pregnant woman undergoing methadone maintenance without risking her possible incarceration. Yet to forego the “gold standard” for treating opioid addiction seems to breach a medical standard of care as well. As the law’s effective date looms, the question becomes how opponents of this bill can capture the law’s inevitably troubling impact when the gender, class, and race dimensions are so systematic and pervasive.
Friday, April 25, 2014
The Boston City Council passed the following law on April 16:
The City of Boston, to the extent permissible by federal and state law after this ordinance is in
force, shall not contract with any health insurance company that refuses to insure any person or that discriminates in the amount of premium, policy fees, or rates charged for any policy or contract of insurance, or in the benefits payable thereunder, or in any of the terms or conditions of such contract, because of gender identity or expression.
And here was a preface to the law:
Many transgender people have been diagnosed with a medical condition known as
Gender Dysphoria (GD), a well-recognized medical condition. In 2008, the
American Medical Association (AMA) adopted a resolution that recognizes
Gender Dysphoria as a “serious medical condition” which can result in severe
psychological impacts if untreated – including increased risk of suicide and death....
Thursday, March 27, 2014
From Jeffrey Toobin, Women Justices Rock the Hobby Lobby Argument
There were two lessons from Tuesday’s argument in the Hobby Lobby case in the Supreme Court. First, it’s very important that there are now three women Justices. Second, it’s even more important that it takes five votes to win.
The issue in the case is straightforward. The Affordable Care Act requires employers who provide health insurance to their employees to include coverage for contraception. The owners of Hobby Lobby, a large (thirteen-thousand-employee), privately held chain of stores, regard certain kinds of birth control (like the I.U.D. and morning-after pills) as forms of abortion, which is against their religious principles. Does the employees’ right to choose and obtain birth control trump the employer’s right to religious freedom?
There was little doubt where the Court’s three female Justices stood. After Paul Clement, the lawyer for Hobby Lobby, began his argument, twenty-eight of the first thirty-two questions to him came from Ruth Bader Ginsburg (four questions), Sonia Sotomayor (eleven), and Elena Kagan (thirteen). The queries varied, of course, but they were all variations on a theme. The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power.
Tuesday, March 25, 2014
The U.S. Supreme Court hears argument in the contraceptive mandate cases today. Lots of good reading on the case and its far-reaching implications.
Lots of good questions being asked out there. Why is religion always in opposition to women's rights? Why does gender discrimination seem more palatable than race -- What if employers refused health insurance coverage for black employees? And how did we get to this place of inserting our employers into our private health decisions?
Thursday, March 13, 2014
New Jersey Judge Rules Women Can Keep Fathers Out of the Delivery Room, or at least non-marital fathers.
A New Jersey judge likely made history this week when he released an opinion that found women can keep the biological father of their children out of the delivery room.
The case was argued by telephone — while the New Jersey woman was in the hospital to give birth.
The judge ruled that requiring the father's presence would pose 'unwarranted strain' on the mother.
He cited a patient's right to privacy and a pregnant woman's right to control her body. The ruling says women also are not obligated to inform a father when they're going into labor. Some fathers' rights groups say the decision is discriminatory. The New Jersey ruling applies only to biological fathers not married to the mother.
Across the U.S., more than 40 percent of births are outside marriage.