Monday, August 8, 2016
Alexander Boni-Saez, Sexual Advance Directives, 68 Alabama L.Rev. (forthcoming 2016)
Abstract:Can one consent to sex in advance? Scholars have neglected the temporal dimension of sexual consent, and this theoretical gap has significant practical implications. With the aging of the population, more and more people will be living for extended periods of time with cognitive impairments that deprive them of the legal capacity to consent to sex. However, they may still manifest sexual desire, so consenting prospectively to sex in this context serves several purposes. These include protecting long-term sexual partners from prosecution by the state, ensuring sexually fulfilled lives for their future disabled selves, or preserving important sexual identities or relationships. The law currently provides a device for prospective decision-making in the face of incapacity: the advance directive. The central claim of this article is that the law should recognize sexual advance directives. In other words, people facing both chronic conditions that threaten their legal capacity to make decisions and institutional care that threatens sexual self-determination should be able to consent prospectively to sex or empower an agent to make decisions about sex on their behalf. To justify this claim, the Article introduces a novel theory of sexual consent — the consensus of consents — that diffuses the longstanding philosophical debates over whether advance directives should be legally enforceable. With this normative foundation, the Article then draws on insights from criminal law, fiduciary law, and the law of wills to fashion a workable regime of sexual advance directives that adequately protects individuals from the risk of sexual abuse.
Tuesday, August 2, 2016
Monday, July 11, 2016
Carol Sager, Abortion Politics in the Age of Zika, US News
It seems clear then that neither Zika transmission nor pregnancy can be wholly prevented. Despite the most diligent attempts to contracept, unwanted pregnancy happens, whether through contraceptive failure, a partner's refusal to cooperate or bad luck. (Forty-five percent of pregnancies in the U.S. are unintended.) All this procreation takes place against the background of the mosquito season now upon us.
This is where public health runs smack into the politics of reproduction. The CDC advises pregnant women with the virus to seek a medical diagnosis for microcephaly and have it confirmed after their baby is born. But some women may wonder whether they want to continue their pregnancies at all under these circumstances. Here, three facts stand out. First, not all Zika-infected women transmit the virus to their fetuses. Second, if the virus is transmitted, common results are serious birth defects – hearing and vision impairment, seizures, intellectual and physical disability – for which there is no cure. Third, at present doctors are unable to confirm microcephaly until around the 20th week of pregnancy. On these facts, decisions about what course to follow may well be complicated, though at least women in the U.S. have a choice. Unlike most of Central and South America where abortion remains a crime, women in the U.S. have a constitutional right to decide whether or not to terminate a pregnancy.
Yet in a number of U.S. states, exercising that right has been made increasingly difficult. In attempts to create abortion-free zones, states have been hacking away at the abortion right any way they can. The general strategy is to make abortion harder to get – harder legally, financially, emotionally and practically. Common tactics include waiting periods, mandatory ultrasounds and burdensome requirements on clinics and providers. Last week the Supreme Court struck down two such provisions in Texas on the ground that neither advanced the health of pregnant women. But among the Texas regulations still in effect is a total ban on abortion after 20 weeks. Recall that microcephaly cannot be definitively diagnosed until after 20 weeks. This means pregnant women may be timed out of legal abortion in Texas, and may not have the resources to go elsewhere.
Timing isn't the only legal problem. Indiana and North Dakota ban abortions sought on the basis of fetal disability, claiming that such abortions are a form of discrimination. Babies born with microcephaly will certainly be disabled.
Thursday, May 26, 2016
Ciara O'Connell (Sussex Law), Diana Guarnizo Peralta (Dejusticia), Cesar Rodriguez-Garavito (Universidad de los Andes), Amicus Curiae Brief Presented to the Intra-American Court of Human Rights in the Case of IV v. Bolivia
Abstract:The IV v. Bolivia case examines the rights of a Bolivian migrant woman who was given a tubal ligation (sterilized) without her informed consent. In this amicus curiae, Ciara O'Connell (University of Sussex) and Diana Guarnizo-Peralta and Cesar Rodriguez-Garavito (Dejusticia) intervene in order to explain how the medical field frequently becomes a place where discrimination is exercised against women in the form of gender stereotyping and "paternalistic control." This amicus requests that the Inter-American Court issue reparation provisions in order to guarantee non-repetition of these women's reproductive rights violations. The suggested reparations consist of the adoption of education programs aimed at training medical students and medical professionals, as well as the general population, and reform of internal rules and manuals on informed consent so that they comply with international standards.
Tuesday, May 24, 2016
Ms. Berg was the first of thousands of women with ovarian cancer to file a lawsuit against the consumer products giant Johnson & Johnson, claiming that baby powder caused their disease and pointing to a long trail of studies linking talc to the cancer. The research dates to 1971, when scientists in Wales discovered particles of talc embedded in ovarian and cervical tumors.
Since then, numerous studies have linked genital talc use to ovarian cancer, including a report earlier this month that among African-American women, genital use of powder is linked with a 44 percent increased risk for invasive epithelial ovarian cancer.
Johnson & Johnson says its trademark baby powder is safe, and it plans to appeal two multimillion-dollar jury awards, including $55 million in damages awarded to a cancer survivor earlier this month and a $72 million award in February.
The International Agency for Research on Cancer in 2006 classified talcum powder as a possible human carcinogen if used in the female genital area. But the agency, part of the World Health Organization, has also said pickled vegetables and coffee are possible carcinogens and that hot dogs cause cancer.
Johnson & Johnson says research implicating talcum powder is flawed and points to studies that absolve talc of any cancer risk.
“We have children ourselves,” said Tara Glasgow, the research and development lead for the company’s baby products franchise worldwide. “We would never sell a product we didn’t believe was safe.”
So did the juries get it right or wrong?
Johnson & Johnson lost its second lawsuit this year over claims that adult women using its baby powder on their vaginas developed ovarian cancer.
A 62-year-old South Dakota woman said she used Johnson & Johnson's powder and Shower-to-Shower product for feminine hygiene for decades, and she developed ovarian cancer in 2011; she had a hysterectomy and other surgeries, and her cancer is now in remission.
Her suit claimed that the company was aware of the possible link between talcum powder and ovarian cancer and didn't warn customers about the potential dangers of using it on their genitals. The jury awarded her $5 million in compensatory damages and $50 million in punitive damages.
In February, a jury awarded $72 million to the family of an Alabama woman who died from ovarian cancer after using the same products. J&J is facing more than 1,000 other cancer lawsuits over talc-containing powders that it marketed to women. (In the '80s, 70 percent of baby-powder users were adults.)
Studies on the topic have mixed results and there is not a medical consensus. The company maintains that the cosmetic talc in its baby powder is safe to use, but it does also sell cornstarch-based formulas. Johnson & Johnson plans to appeal this verdict.
Thursday, May 12, 2016
NWLC Blog, Victory for Birth Control in Maryland
The Maryland Contraceptive Equity Act of 2016 makes sure that women have insurance coverage of the specific birth control that their health care provider prescribes without out-of-pocket costs and requires insurance plans to cover up to six months of birth control dispensed at once....
While the federal Affordable Care Act’s (ACA) birth control benefit eliminated many cost barriers to birth control, even women eligible for this benefit may face difficulties getting coverage without cost of the specific birth control recommended by their health care providers.
That is because the ACA requires coverage without out-of-pocket costs of at least one item within each birth control method category for women, but plans can still use medical management techniques within a birth control method category, such as imposing costs on some pills while covering others without cost. Women often go without preventive health care because of costs, even small costs. So, if a plan is still charging for the specific birth control a woman has chosen with her health care provider, that cost can be a barrier to accessing the care she needs. The Maryland Contraceptive Equity Act of 2016 ensures that women have coverage without cost-sharing of the specific birth control recommended by their health care provider, facilitating women’s access to birth control and enabling them to use it more consistently.
Tuesday, April 19, 2016
Jennifer Bennett Shinall (Vanderbilt), The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination, Minnesota L. Rev. (forthcoming).
Abstract:The Americans with Disabilities Act (ADA) of 1990 was a landmark piece of legislation that prohibited private-sector employers from discriminating against qualified disabled workers. Although the Act is over a quarter-century old, legal scholars have never considered whether the Act has been uniformly efficacious — that is, whether the Act has served all subpopulations of disabled workers equally well. This scholarly neglect is surprising, given that prior economics research indicates that the ADA has been less effective for disabled women than for disabled men. This Article steps back and asks why the Act might have resulted in differential effects for men and women. The ADA provides precisely the same remedies for qualified disabled workers, without taking workers’ sex into account. The Act’s approach assumes that disability discrimination is the same (or highly similar) both in nature and in strength for men and women, but this Article questions that assumption. An empirical examination of all ADA charges filed with the Equal Employment Opportunity Commission reveals a negative interaction between disability discrimination and sex: Disabled workers who are in the minority sex within their workplaces are more likely to encounter discrimination than are disabled workers who are in the majority sex. Because many more industries are majority-male than majority-female, the result of this sex-disability interaction is higher overall rates of disability discrimination against women. Using this empirical evidence, the Article concludes that if disabled women are ever to achieve an equivalent legal remedy for disability discrimination to disabled men, courts must no longer ignore the exacerbating effects of sex discrimination on disability discrimination. Indeed, the case of disabled women highlights the need for courts to reform judicially created proof structures in employment discrimination cases, which — although already the object of much scholarly scrutiny — are particularly unworkable for disabled women.
Wednesday, March 30, 2016
Something strange is afoot at the U.S. Supreme Court. The justices issued a highly unusual order Tuesday for the parties in Zubik v. Burwell, one of this term’smost-watched cases.
The order instructs the parties in Zubik and a bevy of related cases to “file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees” (“petitioners” in this case, refers to the employers who object to birth control). In case that instruction is not clear, the order also offers an example of a possible regime that may survive review in the Supreme Court:
[T]he parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any
separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan
Monday, March 28, 2016
Zubik v. Burwell, Transcript of Oral Argument
Zubik v. Burwell, Audio of Oral Argument (Oyez)
Balkinization, The Zubik Oral Argument Pt. 2
Only one of these headlines mentions women.
Tuesday, November 10, 2015
The Supreme Court granted cert last Friday in Little Sisters v. Burwell consolidating several cases raising religious objections to filing paperwork in order to trigger the religious exemption to providing employees with contraception as otherwise required by federal healthcare law.
- Supreme Court Grants Cert in Birth Control Mandate Challenge
- The Birth Control Wars Return to the Supreme Court
- The Little Sisters of the Poor Get Their Day at the Supreme Court
Prior to the grant, Caroline Corbin (Miami), explained the circuit split and the issues in Paperwork as a Substantial Religious Burden, Jurist
Hobby Lobby focused on for-profit companies because non-profit organizations were already exempt. Under Department of Health and Human Services regulations, religious non-profits need not include contraception in their health care plans. Instead once a religious non-profit declares its religious opposition, it can have its health care insurer or, if it is self-insured, a third party administrator, provide coverage instead. Indeed, the Hobby Lobby court pointed to this accommodation as a reason why the contraception mandate's application to religious for-profits was not narrowly tailored. If this accommodation worked for non-profits, the court reasoned, then why not for for-profits?
Nonetheless, some non-profits have complained that the religious accommodation itself violates their religious rights. They argue that filing the paperwork that grants them their exemption imposes a substantial burden on their religious practice. According to these religious non-profits, signing a two-page form or sending a letter facilitates the provision of contraception, thus making them complicit in sin.
Although multiple courts (including the US Court of Appeals for the Third Circuit [PDF], the US Court of Appeals for the Sixth Circuit [PDF], the US Court of Appeals for the Seventh Circuit and the US Court of Appeals for the DC Circuit [PDF]) have rejected this claim, the US Supreme Court has stayed these decisions. Mere days after writing in Hobby Lobby that the accommodation for non-profits "constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty," the court granted an emergency injunction against that very alternative in Wheaton College v. Burwell [PDF]. In her Wheaton dissent, Justice Sotomayor lamented that "[t]hose who are bound by our decisions usually believe they can take us at our word. Not so today."
Setting aside the court's mixed messages, the non-profits' claim should fail. At the most basic level, it misunderstands how the contraception mandate works. The religious organizations believe that their written refusal triggers the provision of contraception. As a matter of law, they are wrong. Their paperwork does not cause contraception coverage. The Affordable Care Act, passed by a democratically-elected Congress, does.
Tuesday, August 11, 2015
The National Women's Law Center explains the existing law of pharmacists' "right" to refuse to dispense contraception. Pharmacy Refusals 101
Refusal to Dispense Contraception are Increasing
- Reports of pharmacies refusing to fill prescriptions for birth control—or provide EC—have surfaced in at least twenty-five states across the nation, including: AZ, CA, DC, GA, IL, LA, MA, MI, MN, MO, MT, NH, NJ, NY, NC, OH, OK, OR, RI, TN, TX, VA, WA, WV, WI.
- These refusals to dispense prescription contraceptives or provide EC are based on personal beliefs, not on legitimate medical or professional concerns. The same pharmacies that refuse to dispense contraceptives because of personal beliefs often refuse to transfer a woman’s prescription or refer her to another pharmacy. These refusals can have devastating consequences for women’s health.
- Despite the fact one type of EC is available without a prescription, refusals based on personal beliefs are still a problem. Some stores prefer to keep non-prescription EC behind the counter or in locked cases, so individuals seeking it must interact with pharmacists or other pharmacy staff who may have personal beliefs against providing the drug.
The Legal Landscape: What Governs the Practice of Pharmacy?
- The laws governing pharmacies vary from state to state. Pharmacies must abide by state laws and regulations, which are written by the state legislature and the state Pharmacy Board.
- The laws and regulations in most states do not specifically speak to the issue of pharmacy refusals based on personal beliefs. States that provide general guidance about when pharmacies or pharmacists may refuse to dispense tend to limit the reasons for such a refusal to professional or medical considerations—such as potentially harmful contraindication, interactions with other drugs, improper dosage, and suspected drug abuse or misuse—as opposed to personal judgments.
- Many pharmacist associations that have considered this issue, including the American Pharmacists Association, have issued policies requiring that patient access to legally prescribed medications is not compromised—for example by either filling valid prescriptions or transferring them to another pharmacist who can. Although such policies are not legally binding, they encourage pharmacies to meet consumers’ needs.
Thursday, July 23, 2015
Linda Greenhouse (NYT/Yale) and Reva Siegel (Yale), Casey and the Clinic Closings: When "Protecting Health" is an Undue Burden, Yale L. J (forthcoming).
Abstract:We seek in this article to understand how the Supreme Court's abortion jurisprudence addresses laws that invoke, not potential life, but women's health as a reason to single out abortion for burdensome regulation that closes clinics. We approach this project with a sense of urgency. The current wave of health-justified restrictions — prominently including laws that require abortion providers to secure admitting privileges at nearby hospitals or to become the functional equivalents of hospitals themselves — is destroying the clinic infrastructure on which women depend in order to exercise their constitutional right to terminate a pregnancy.
There is now a sharp circuit conflict over how judges are to evaluate the states' claims that admitting privilege laws protect women's health. Some circuits read Planned Parenthood of Southeastern Pennsylvania v. Casey and the Court’s subsequent decision in Gonzales v. Carhart to require courts to examine whether health-justified regulations actually and effectively serve health-related ends. Others construe the cases to require judicial deference to the states' claims. We argue that Casey/Carhart require judicial scrutiny of health-justified regulations to ensure these regulations do not obstruct abortion by unconstitutional means.
The analysis of health-justified restrictions we offer rests on an understanding of Casey's undue burden standard — reaffirmed in Carhart — as the product of a compromise over Roe v. Wade. While prohibiting states from banning abortion before fetal viability, Casey allowed government to express a preference for childbirth throughout a woman's pregnancy by trying to persuade her, through a 24-hour waiting period and the provision of information, to forego abortion. Persuasion is the heart of the Casey compromise: government may protect potential life, but not in ways that obstruct women from acting on their constitutionally protected choice.
Regulations that close clinics in the name of women's health, but without health-related justification, do not persuade; they prevent. In so doing, they violate the constitutional principle at the core of the Casey compromise: that government express respect for the dignity of human life by means that respect the dignity of women.
Thursday, July 16, 2015
Women in Oregon will soon be able to receive birth control prescriptions from pharmacists, thanks to a new law signed by Gov. Kate Brown this week. Under the new rule, birth control can be obtained without the added burden of scheduling a doctor’s visit. The bill passed the state’s house in a 50-10 bipartisan vote.
To get birth control from a pharmacist, women over 18 will have to fill out a simple health questionnaire so that pharmacists can recommend the best contraceptive method for them. Those under 18 will need proof of a previous birth control prescription, but aren’t required to get a new one. The contraception will still be covered by the patient’s insurance.
State Rep. Knute Buehler (R) celebrated the bill in a press release, saying that his background as a medical professional informed his beliefs on access to contraception.
Tuesday, June 30, 2015
A federal district court today dismissed a lawsuit filed by the American Civil Liberties Union and the ACLU of Michigan on behalf of a pregnant woman who was denied appropriate medical treatment because of the hospital’s religious directives.
In terminating the lawsuit brought by Muskegon resident Tamesha Means against the U.S. Conference of Catholic Bishops, the U.S. District Court for the Western District of Michigan said it was doing so, in part, because resolution of the case would involve reviewing religious doctrine. ***
In 2010, Ms. Means rushed to Mercy Health Partners when her water broke after only 18 weeks of pregnancy. The hospital, which was the only one in Muskegon County, sent her home twice even though she was in excruciating pain. Because of its Catholic affiliation and binding directives, the hospital told Ms. Means that there was nothing it could do, and it did not tell Ms. Means that terminating her pregnancy was an option and the safest course for her condition.
When Ms. Means returned to the hospital in extreme distress and with an infection, the hospital prepared to send her home for a third time. While staff prepared her discharge paperwork, she began to deliver. Only then did the hospital begin tending to Ms. Means’ miscarriage.
Tuesday, June 23, 2015
On Monday, the Fifth Circuit—one of the most conservative appeals courts in the country—rejected a challenge to the Affordable Care Act's contraceptive mandate in an opinion written by Judge Jerry E. Smith—one of the most conservative federal judges on the bench. The challenge, brought by nonprofit religious groups, claimed that the mandate violated the Religious Freedom Restoration Act (RFRA) by forcing these groups to sign a form that would eventually allow their employees to access contraception. In a concise, emphatic opinion, the court ruled that the mandate complies with RFRA. ***
The religious groups currently suing the government claim that the act of submitting this form constitutes a substantial burden on their religious exericse, in violation of RFRA. Signing the form, they argue, will set into motion a chain of events that ultimately allows their employees to gain access to contraception. The Third, Sixth, Seventh, and D.C. Circuits have already rejected this argument; the Fifth Circuit now joins their ranks. At the heart of the court's opinion is this remarkable passage:
Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise.
Thursday, April 23, 2015
Before the passage of the Affordable Care Act (ACA), Geneva College, which is associated with the Reformed Presbyterian Church of North America, regularly notified its insurance carrier that it would not provide coverage for four contraceptives that it deemed to be abortifacients, namely, emergency contraceptives Plan B and ella and two intrauterine devices. Similarly, the Roman Catholic Bishops and Dioceses of Pittsburgh and Erie, Pennsylvania, along with their affiliated nonprofit organizations Catholic Charities, Prince of Peace Center, St. Martin Center, and Erie Catholic Cathedral Preparatory School, regularly notified their insurance carriers that they would not provide any contraceptive insurance. Geneva College administrators believe some contraceptives cause abortion and abortion is immoral; Catholic officials believe all contraception is immoral.
After the passage of the ACA, Geneva College is required to tell either its insurance company or the Department of Health and Human Services (HHS) that it will not provide coverage for four contraceptives that it deems to be abortifacients, namely, emergency contraceptives Plan B and ella and two intrauterine devices. Similarly, the Roman Catholic organizations are required to tell either their insurance companies or HHS that they will not provide contraceptive coverage to their employees.
Post-ACA, however, the religious organizations argue that filling out a simple notification form, just as they did in the past, substantially burdens their religion in violation of the Religious Freedom Restoration Act (RFRA). They argue that filling out a form makes them “complicit” in the sins of abortion and contraception because their signatures immorally “trigger” abortion and contraception.
Four courts of appeals—the Sixth, Seventh, D.C., and, most recently, the Third Circuits, in Geneva College v. Burwell— rejected that argument. The “trigger” to insurance coverage, those courts concluded, is the ACA itself, which legally requires contraceptive access for employees. Thus there is no “causal link” or trigger between the notification forms and contraception. Without a trigger, there is no substantial burden on religion, because women’s independent access to contraception is not a substantial burden on the religious organizations’ religious exercise. As the Third Circuit shrewdly observed:
The appellees’ real objection is to what happens after the form is provided—that is, to the actions of the insurance issuers and the third-party administrators, required by law, once the appellees give notice of their objection.
The court then refused to give the religious organizations a veto over women’s rights on such non-substantial ground.
There things stood until Justice Samuel Alito shot down women’s rights last week by staying the Third Circuit’s opinion for the Catholic plaintiffs. Geneva College has asked the Court for a similar stay.
Wednesday, November 19, 2014
Medicine has not traditionally been very kind to lesbian, gay, bisexual, and transgender people. While homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1973, and was no longer considered a disorder, attempts by doctors to “treat” it persist even today. Though research and understanding of LGBT healthcare has improved in recent years, the social stigma and discrimination faced by LGBT people leads to health disparities that put them at higher risk for certain conditions. This is also the case with those who are gender non-conforming, or who are born with atypical sex anatomy (sometimes called “intersex,” though the medical term for the condition is “disorders of sex development,” or DSD).
With all that in mind, the American Association of Medical Colleges released new guidelines earlier this week on how to improve med school curricula to better prepare young doctors to treat their LGBT, gender non-conforming, and DSD patients. Authors of the publication spanned all aspects of the medical profession, from psychiatry to genetics to clinical practice. I spoke with Kristen Eckstrand, a fourth-year medical student at Vanderbilt University, chair of the AAMC Advisory Committee on Sexual Orientation, Gender Identity, and Sex Development, and editor of the guidelines about what doctors need to know to treat their patients effectively and respectfully.
Thursday, October 23, 2014
So suggests the Korea Herald. The fertility rate (or lack thereof) among South Koreans is owing in part to the class inequality in the country and the demands of an industrial nation-state.
South Korea’s low birthrate is generating deep concern among policymakers.
The government is scrambling to shore up the falling birthrate, a threat that could jeopardize Asia’s fourth-largest economy, which is saddled with a rapidly aging population.
What many policymakers have failed to tackle is the underlying problem that forces Koreans to delay or forgo having children.
Just ask Kim Jin-ah, a 28-year-old Seoulite who still hasn’t been “properly” employed, despite her two university degrees.
“I don’t think marriage is an option for me right now,” said Kim, who currently works as a part-time tutor. “Having kids is just not even thinkable. I can’t even take care of myself right now. I am not sure if I deserve to be happy at this moment.”
After finishing her master’s degree in biology, Kim, at age 26, realized she didn’t want to be a scientist. She started looking for jobs ― a full-time position that would pay her enough to move out of her parents’ house and start a family of her own ― but never found one.
During one job interview, for a marketing position at a big firm, Kim was told that she was “too old” for the company’s entry-level positions.
Kim, who lives with her parents, is considering going back to school, or even overseas for job opportunities. She is putting off marriage until she gets a full time job.
“If you are not working full time and want to be married, you have to have wealthy parents,” she said. “That’s just not the case for me.”
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.