Reproductive Rights Prof Blog

Editor: Caitlin E. Borgmann
CUNY School of Law

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Friday, April 4, 2014

The 71 For-Profit Companies That Have Challenged the Contraceptive Rule

Mother Jones:  It's Not Just Hobby Lobby: These 71 Companies Don't Want to Cover Your Birth Control Either, by Jaeah Lee:

Last week, the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby Inc., the closely watched case in which the Oklahoma-based craft store chain has challenged the Affordable Care Act's contraceptive mandate, requiring insurance policies to cover birth control without a copay. Hobby Lobby's high-profile case may have nabbed most of the headlines so far, but it's far from the only company that's taking on the Obama administration over the mandate.

Since February 2012, 71 other for-profit companies have challenged the ACA's contraceptive mandate in court, according to the National Women's Law Center (NWLC). The majority of these for-profit cases (46 in addition to Hobby Lobby's) are still pending. Jump to the full list of cases by clicking here. . . .

April 4, 2014 in Contraception, In the Courts, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2014

Hobby Lobby's Retirement Plan Includes Investments in Companies That Make Abortion Drugs

The Washington Post:  Antiabortion company Hobby Lobby reportedly invests retirement funds in abortion drugs, by Gail Sullivan:

“Being Christians, we don’t pay for drugs that might cause abortions … something that is contrary to our most important beliefs. It goes against the biblical principles on which we have run this company since day one,”  Hobby Lobby founder David Green wrote in an article for USA Today.

Hobby Lobby is so committed to those principles that it’s gone to the U.S. Supreme Court to challenge a provision in the Affordable Care Act that it says requires it to provide access to insurance covering birth control for its employees, some forms of which it equates with abortion.

No wonder then, the glee emanating from some quarters Tuesday when Molly Redden of Mother Jones reported that the company’s retirement plan holds $73 million in mutual funds with investments in companies that make abortion drugs. . . .

April 3, 2014 in Abortion, Contraception, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, March 28, 2014

Commentary on Hobby Lobby

Balkinization: Religious Accommodations Cost More than Money, by Kara Loewentheil: 

Yesterday the Supreme Court heard arguments in the consolidated cases ofHobby Lobby and Conestoga Wood. With the publication of the full argument transcript online, it became clear that even the experienced lawyers arguing these cases – along with the Supreme Court Justices themselves – were struggling to understand how to think about the relationship between religious accommodations and third party rights. In this context, that means the impacts that accommodations granted to religious employers would have on their female employees who would otherwise have access to contraception without cost-sharing under the Affordable Care Act’s contraceptive coverage requirement (and indirectly on their partners and children). 
 
This came as no surprise to me. In When Free Exercise Is A Burden: Protecting “Third Parties” In Religious Accommodation Law, a paper I authored that is shortly forthcoming in the Drake Law Review, I argue that neither scholars nor courts have thus far provided a satisfying account of how to balance free exercise rights against the impact of those rights on “third parties.” . . .
 
In my paper I argue that the contraceptive coverage requirement has an enormously important expressive element – it signifies a social and political commitment to women’s social and economic equality, and symbolizes an acceptance of social and shared responsibility for gender equality. . . .
 
 
Hobby Lobby is shaping up to be the most important free exercise of religion case the Supreme Court has heard in a very long time.    It’s also emerging as a key test for Justice Anthony Kennedy and his vision of individual liberty.  Will Justice Kennedy recognize that Hobby Lobby’s employees, who seek to protect their health and control their reproductive lives, are entitled to enjoy federal guarantees that safeguard women’s liberty and personal dignity by ensuring access to the full range of contraceptives? . . .

March 28, 2014 in Contraception, Religion, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (1) | TrackBack (0)

Thursday, March 27, 2014

National Survey Shows Women Object to Religious Exemptions

Planned Parenthood: Women Voters' Reaction to Religious Exemptions, by Hart Research Associates:

Overview of Key Findings:

Our new national survey of 1,004 women voters between the ages of 18 and 55 shows that a large majority strongly object to the religious exemptions for corporations that are being sought in the Hobby Lobby case.

    • Women voters consistently and overwhelmingly disagree with the idea that corporations should be able to exempt themselves from observing laws because those laws violate their religious beliefs.
    • Women age 55 and younger specifically reject corporations’ claims that they should be exempted from covering prescription birth control in their health plans because of religious objections to contraception. 
    • Democrats and independents reject these claims overwhelmingly, while Republicans are divided evenly.
These findings—underscoring strong objections to religious exemptions for corporations—are consistent with other public polls on the topic that show that more than half of all voters oppose allowing employers to opt out of covering prescription birth control in their health plans as required under the Affordable Care Act. . . .

March 27, 2014 in Contraception, Public Opinion, Religion, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 25, 2014

Round-Up on Today's Oral Arguments in Hobby Lobby

SCOTUSblog: Birth Control, Business, and Religious Beliefs: In Plain English, by Amy Howe:

Almost two years ago to the day, the Supreme Court heard oral arguments in a challenge to the Affordable Care Act’s individual mandate, which requires virtually everyone in the United States to buy health insurance or pay a penalty.  This morning, it heard a new and different challenge arising out of the Affordable Care Act:  can a business be required to provide its female employees with health insurance that includes access to free birth control, even if doing so would violate the strong religious beliefs of the family that owns the business?  After the oral argument today, it looked like the Court’s answer may well be no, although the decision may not prove as sweeping as some of the challengers might prefer.  And as is so often the case, it looks like Justice Anthony Kennedy may hold the key vote in the case.  Let’s talk about the proceedings at the Court today in Plain English. . . .

Balkinization: Today's Oral Arguments in Hobby Lobby, by Nelson Tebbe:

The oral argument in Hobby Lobby and Conestoga Wood, which I attended today, provided some slight cause for optimism for those of us who have been arguing that accommodating the companies would raise serious concerns because it would mean shifting the cost of that accommodation onto third parties (the affected women employees). Not only did Solicitor General Verrilli open and close with the argument, but Justice Kennedy arguably displayed some sympathy for the point. First, Justice Kennedy asked Paul Clement (who was arguing for the companies) whether there are rules of statutory construction that should guide the Court in this case, such as the canon of constitutional avoidance. Later, Justice Kennedy asked directly what should happen when granting an accommodation for the companies would shift costs onto employees. Justice Kennedy asked whether the employer's interests should simply trump in such situations. . . .

NPR:  Justices Divide By Gender In Hobby Lobby Contraception Case, by Nina Totenberg:

There was a clear difference of opinion between male and female justices at the U.S. Supreme Court on Tuesday. The issue was whether for-profit corporations, citing religious objections, may refuse to include contraception coverage in the basic health plan now mandated under the Affordable Care Act.

The female justices were clearly supportive of the contraception mandate, while a majority of the male justices were more skeptical. . . .

 

March 25, 2014 in Contraception, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Important but Little-Discussed Fact -- How Plan B Actually Works -- Undermines Hobby Lobby's Claims

The Wall Street Journal - Law Blog: In Contraceptives Case, Court May Run Into Plan B, by Joe Palazzolo:

As the Supreme Court weighs whether for-profit companies have the religious right to refuse to provide contraceptives, it may also run into another question: Whether the Plan B drug is a contraceptive or a form of abortion. . . .

When the Food and Drug Administration approved a drug known as Plan B One-Step in 1999, it wasn’t entirely clear how the drug worked. So the agency required that the label mention the possibility that the drug affected implantation. . . .

Abortion-rights advocates and medical groups, including the American College of Obstetricians and Gynecologists, say heaps of research since the late 1990s has produced no scientific evidence showing that Plan B inhibits implantation. There are fewer studies on ella, because it is a newer drug, but they have reached the same conclusion, they say.

“FDA labeling has not caught up with the recent research,” said Caitlin E. Borgmann a law professor at City University of New York Law School and former lawyer for the American Civil Liberties Union’s Reproductive Freedom Project. . . .

___________________________________

See also Caroline Corbin's article on this issue.

March 24, 2014 in Contraception, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Opinion on Hobby Lobby

The Washington Post - op-ed:  Contraception as a test of equality, by Walter Dellinger:

Walter Dellinger is an attorney in Washington. He co-authored, with Dawn Johnsen of the Indiana Maurer School of Law, a brief for the Guttmacher Institute and professor Sara Rosenbaum of George Washington University supporting contraception coverage.

Forty-nine years ago this week , the nine men on the Supreme Court heard arguments that would profoundly affect women’s access to birth control. By 21st-century standards, the oral arguments in the 1965 case Griswold v. Connecticut suggest that most of the justices were either uninformed about contraceptive methods or uncomfortable discussing them. When the court returns to the subject of birth control this week, it is critical that the justices understand the complexity of contraception and its role in women’s lives. . . .

The New York Times editorial: Crying Wolf on Religious Liberty:

This week, the owners of two secular, for-profit corporations will ask the Supreme Court to take a radical turn and allow them to impose their religious views on their employees — by refusing to permit them contraceptive coverage as required under the Affordable Care Act.

The Supreme Court has consistently resisted claims for religious exemptions from laws that are neutral and apply broadly when the exemptions would significantly harm other people, as this one would. To approve it would flout the First Amendment, which forbids government from favoring one religion over another — or over nonbelievers. . . .

Balkinization: Whose Faith Does RFRA Protect?  Everyone's, No One's, or Not Mine?, by Priscilla Smith:

One outcome of tomorrow's Hobby Lobby case that this reproductive rights supporter might be able to get behind involves granting the Hobby Lobby Executives an accommodation from the Affordable Care Act’s contraceptive coverage requirements under an expansive view of the Religious Freedom Restoration Act (RFRA).  I’ve written about this possibility in a forthcoming article here.  Under this view, it is the RFRA claimant, not the court, who decides if something is a “substantial burden” on “religious exercise” under RFRA.  Counsel for the University of Notre Dame promoted this view of RFRA in a recent Seventh Circuit oral argument in a related case, stating “[i]t is up to the believer to draw the line.”  As Marty Lederman's excellent posts here revealing the lack of burden on Hobby Lobby Executives religious exercise should establish, in order to find for Hobby Lobby the Court needs to adopt this broad view of RFRA's protections. . . .

March 24, 2014 in Contraception, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Hobby Lobby Round-Up

Supreme CourtSCOTUSblog: Argument Preview: Religion, Rights, and the Workplace, by Lyle Denniston:

At 10 a.m. next Tuesday, the Supreme Court will hold ninety minutes of oral argument on the government’s authority to require private businesses to provide birth control and other pregnancy-related services to their employees under the Affordable Care Act.  Arguing for the challengers to the so-called “contraceptive mandate” will be Paul D. Clement, of the Washington, D.C., law firm of Bancroft PLLC.  Defending the mandate will be U.S. Solicitor General Donald B. Verrilli, Jr.   Each will have forty-five minutes of time, under an order issued Thursday expanding the time beyond the normal amount.  The consolidated cases are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius. . . .

Newsweek: It's About Birth Control, Stupid, by Pema Levy:

For two years, Republicans have rallied against the Affordable Care Act's (ACA) provision that health insurance plans cover the full range of contraceptives approved by the Food and Drug Administration, charging that the rule is an assault on religious liberty.

Next week, when the Supreme Court hears oral arguments in two legal challenges to the contraception requirement, the issue of religious freedom will be front and center. . . .

But for political activists on both sides -- and perhaps for the justices themselves -- it all comes down to the decades-old left-right battle over birth control. . . .

ThinkProgress: If Hobby Lobby Wins, It Will Be Even Worse For Birth Control Access Than You Think, by Tara Culp-Ressler:

Next week, the Supreme Court will take up the issue of contraceptive coverage, hearing arguments in a closely-watched lawsuit against the Affordable Care Act. Two for-profit companies — the craft chain Hobby Lobby and the furniture-making company Conestoga Wood Specialties — are fighting for their right to withhold insurance coverage for certain types of contraceptive methods based on their religious beliefs. But there’s actually much more at stake than prescription drug coverage.

The two plaintiffs in these cases object not just to covering specific types of birth control, but also to providing counseling about that birth control. In Hobby Lobby’s lawsuit, for instance, the company states that it does not want to follow the Obamacare provision that forces employers to “provide health insurance coverage for abortion-inducing drugs and devices, as well as related education and counseling.”  . . .

The New York Times: Ruling Could Have Reach Beyond Issue Of Insurance, by Adam Liptak:

The Supreme Court on Tuesday will hear arguments in a case that pits religious liberty against women’s rights.

That issue is momentous enough. But it only begins to touch on the potential consequences of the court’s ruling in the case, notably for laws banning discrimination against gay men and lesbians. . . .

 

March 24, 2014 in Contraception, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Saturday, March 15, 2014

Majority of Americans Think Employers Should Comply With Contraception Rule

The Wall Street Journal - Washington Wire blog:  WSJ Poll: Majority Agree With Obamacare Contraception Rule, by Louise Radnofsky:

A majority of Americans side with the Obama administration in saying that most employers should be required to include contraception coverage in workers’ health plans even if the business owners have moral objections.

An NBC News/ Wall Street Journal poll found 53% of Americans believed that employers who opposed the use of birth control should not be exempt from the coverage requirement in the 2010 federal health law. Some 41% said employers who had objections should have the same exemption as religious organizations. Around 6% said they were not sure. . . .

March 15, 2014 in Contraception, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, March 7, 2014

Study Shows Free Contraception Does Not Increase Risky Behavior Among Women

live.science: Free Birth Control Has Little Effect on Women's Sexual Behavior, Study Suggests, by Cari Nierenberg:

Offering free contraception to women and teenage girls does not cause them to increase their risky sexual behavior over time, a new study suggests.

Researchers found that after receiving free birth control, most women reported no change in their number of sexual partners, and only a modest increase in sex frequency, from an average of four times a month before getting free birth control to six times a month after receiving it. . . .

March 7, 2014 in Contraception, Scholarship and Research | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

SCOTUSblog's Contraceptive Mandate Symposium Addresses Hobby Lobby and Corporate Religious Refusals

SCOTUSblog: Accomodations, Religious Freedom, and the Hobby Lobby Case, by Rick Garnett:

Every law student learns and every lawyer knows that there is more to “doing law” than simply looking up or even arguing for the right answers.  It also involves identifying the questions that need answering.  This is one reason why law-school examinations so often ask students to “spot the issues” that are presented, or hidden, in complicated and sometimes bizarre hypotheticals, stories, and narratives. . . .

SCOTUSblog: Under a Straight-forward Reading of Constitutional Text and History and Fundamentals of Corportate Law, Hobby Lobby's Claims Fails, by Elizabeth Wydra:

Superstar Supreme Court lawyer Paul Clement starts his brief on behalf of Hobby Lobby Stores, Inc., and its individual owners, the Green family, with a rather remarkable assertion: that this case “is one of the most straight-forward violations of the Religious Freedom Restoration Act.”  Someone like Clement can get away with breaking one of the basic rules of legal advocacy – one is generally not supposed to tell the Court that it is reviewing “an easy case,” since such a legal cakewalk probably wouldn’t require the rare attention of the High Court.  But Clement’s assertion is nonetheless wrong.  To the contrary, it’s — dare I say — easy to show that this case is far from easy for Hobby Lobby to win. . . . 

SCOTUSblog: Mandates Make Martyrs Out of Corporate Owners, by Ilya Shapiro:

Should some people be exempt from laws that generally apply to everyone but infringe on sincerely held religious beliefs? If so, doesn’t that privilege believers over nonbelievers, and indeed pick and choose among religious tenets to determine which merit accommodation? Does it matter if the religious belief in question relates strictly to worship or is tied to an otherwise secular mission, such as the provision of education or social-welfare services? What about commercial activity, and do the legal forms in which that activity is pursued matter? These are some of the thorny questions that arise when a pluralistic society tries to reconcile the rule of law with religious liberty. . . .

_______________________________

Other pieces in the symposium can be accessed here.

March 3, 2014 in Contraception, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

More Opinion on Hobby Lobby and the Vetoed Arizona Bill

The New York Times - opinion column: Arizona Did Us All a Favor, by Timothy Egan:

YOU’RE a fundamentalist Mormon — that is, the breakaway sect, not recognized by the main church, with a scary compound in Northern Arizona. Women wear long prairie dresses, men rule with an iron fist. You believe in a host of things that violate civil and even criminal law. But your beliefs are “sincerely held.” They come directly from God.

Until Gov. Jan Brewer joined the avalanche of sanity and vetoed Arizona’s so-called religious liberty bill, you may have found some protection in the law. The bill was a green light for bigotry. And indeed, the measure gave those with “sincerely held” religious beliefs the right to refuse service to perceived sinners.

But if you drill down on the logic that all but three of the state’s House Republican legislators tried to enshrine into law, you see a very un-American tenet at work — far beyond the implications for gays and lesbians. You can follow this strain of reasoning up to a pivotal case that will be heard later this month by the Supreme Court. . . .

March 3, 2014 in Contraception, Religion, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Saturday, March 1, 2014

If the Arizona Anti-Gay Bill Is Unacceptable, Why Should Corporations Be Given a License to Discriminate Against Women by Refusing to Comply with the Contraceptive Coverage Rule?

If the Supreme Court Justices need a real-life example of the slippery slope they are in danger of inviting by allowing corporations to refuse, on religious grounds, to comply with the contraception rule under the Affordable Care Act, they need look no further than Arizona.

The Huffington Post - The Blog:  What Do Arizona's Anti-LGBT Bill and the Supreme Court Birth Control Cases Have in Common? They're Not About Religious Liberty, by Cecile Richards:

Arizona Governor Jan Brewer was right to veto an extreme bill that would have allowed companies to refuse service to a wide range of people. This bill was absolutely unacceptable -- and people all over the country and across the political spectrum breathed a sigh of relief when Brewer stopped it from becoming law.

The personal beliefs of any business owner should not give them a free pass to discriminate against anyone -- whether it's lesbian, gay, bisexual, or transgender patrons who want to shop at their store or female employees who are legally entitled to birth control coverage under the law.

But this didn't start with Arizona, and it won't end with Arizona. This most recent legislation is part of an orchestrated and radical effort to extend religious liberties to corporations -- to treat private businesses like churches under the law, by giving them the right to refuse services, deny health care coverage, and discriminate against people. . . .

March 1, 2014 in Contraception, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Thursday, February 6, 2014

A Missing Argument in Hobby Lobby

The New York Times editorial: A Missing Argument on Contraceptives:

One of the most anticipated showdowns of the Supreme Court’s current term will take place March 25, when the justices are scheduled to hear two cases brought by secular, for-profit corporations whose owners want an exemption, based on their religious beliefs, from the requirement that employers’ health plans cover the full range of contraceptive services without a co-payment. . . .

Oddly, the Justice Department has relegated to a footnote what may be the strongest single argument against allowing the two companies to deny their workers contraceptive coverage that they would otherwise be entitled to under the health care law. . . .

February 6, 2014 in Contraception, Supreme Court | Permalink | Comments (0) | TrackBack (0)

U.N. Committee Report Blasts Vatican for Policies on Sexual Abuse and Attitudes on Sexuality, Contraception, and Abortion

VaticanThe Huffington Post/AP: UN Report Denounces Vatican For Sex Abuse And Stands On Contraception, Abortion And Homosexuality, by Nicole Winfield:

The Vatican "systematically" adopted policies that allowed priests to rape and molest tens of thousands of children over decades, a U.N. human rights committee said Wednesday, urging the Holy See to open its files on pedophiles and bishops who concealed their crimes.

In a devastating report hailed by abuse victims, the U.N. committee severely criticized the Holy See for its attitudes toward homosexuality, contraception and abortion and said it should change its own canon law to ensure children's rights and their access to health care are guaranteed. . . .

February 6, 2014 in Abortion, Contraception, Religion, Religion and Reproductive Rights, Sexual Assault, Sexuality | Permalink | Comments (0) | TrackBack (0)

Saturday, February 1, 2014

Caroline Corbin on Corporate Exemptions from the Contraceptive Coverage Rule

Caroline Mala Corbin (Univ. of Miami Law School) has posted the following articles on SSRN:

Caroline CorbinCorporate Religious Liberty: Why Corporations Are Not Entitled to Religious Exemptions:

One of the main questions before the Supreme Court in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius is whether large for-profit corporations are entitled to religious exemptions under the Free Exercise Clause or the Religious Freedom Restoration Act. In particular, the plaintiffs seek religious exemptions from the Affordable Care Act’s so-called “contraception mandate.”

This is an entirely novel claim. It is also without merit. The Free Exercise Clause and the Religious Freedom Restoration Act protect the religious practices of individuals and churches. They do not, and should not, extend to the for-profit corporate form for at least three reasons. First, corporate religious liberty makes no sense as free exercise is understood to (a) protect an individual’s relationship with the divine and (b) respect the inherent dignity of the individual. Furthermore, Citizens United v. Federal Election Commission provides no theoretical foundation for corporate religious liberty: The justifications for extending free speech protection to for-profit corporations do not translate into the free exercise context. Second, there is no precedent for the claim that for-profit corporations are entitled to religious liberty exemptions; on the contrary, precedent points in the other direction. Third, recognizing corporate religious liberty will benefit employers at the expense of their employees, who risk losing protection of the employment laws as well as their own free exercise rights.
 
 
Do for-profit corporations have a right to religious liberty? This question is front and center in two cases before the Supreme Court challenging the Affordable Care Act’s “contraception mandate.” Whether for-profit corporations are entitled to religious exemptions is a question of first impression. Most scholars writing on this issue argue that for-profit corporations do have the right to religious liberty, especially after the Supreme Court recognized that for-profit corporations have the right to free speech in Citizens United. 

This essay argues that for-profit corporations should not – and do not – have religious liberty rights. First, there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for churches. Citizens United fails to provide a justification as its protection for corporate speech is based on the rights of audiences and not the rights of corporate speakers. Second, as a matter of current law, neither the Free Exercise Clause nor the Religious Freedom Restoration Act recognizes the religious rights of for-profit corporations. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.

February 1, 2014 in Contraception, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Amicus Brief of Guttmacher Institute in Hobby Lobby Case Available Online

The Guttmacher Institute: Guttmacher Supreme Court Brief Puts Data Front and Center in Support of ACA's Contaceptive Coverage Guarantee

The U.S. Supreme Court should hold that owners of for-profit companies cannot assert religious objections to deny their employees insurance coverage of contraceptive services and supplies in employer-sponsored health plans, argues a friend-of-the-court brief filed by the Guttmacher Institute and Professor Sara Rosenbaum (a member of the Guttmacher board of directors and professor at The George Washington University). The brief’s legal team was led by former Acting Solicitor General Walter Dellinger and Indiana University Professor (and Guttmacher board member) Dawn Johnsen.

At issue in two related cases (Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius), to be argued before the Court on March 25, is a provision under the 2010 Affordable Care Act (ACA) guaranteeing that most private insurance plans cover the full range of prescription contraception without cost-sharing for patients. Churches and other houses of worship are exempted from this requirement and an accommodation is in place for religiously affiliated nonprofit organizations. However, a number of for-profit companies are challenging the federal policy, claiming they too should be able to opt out of covering some or possibly all methods of contraception on the grounds that their owners deem those methods morally objectionable.

Continue reading

February 1, 2014 in Contraception, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Thursday, January 30, 2014

Amicus Brief of Church-State Scholars in Hobby Lobby Case Available on SSRN

Frederick Mark Gedicks (BYU Law School) has posted the Brief of Amici Curiae Church-State Scholars in Support of the Government in Sebelius v. Hobby Lobby Stores, Inc. & Conestoga Wood Specialties Corp. v. Sebelius on SSRN.  Here is the summary:

This brief argues that permissive religious accommodations violate the Establishment Clause and conflict with Free Exercise Clause and Title VII accommodation decisions when they impose significant costs of practicing the accommodated religion on those who do not believe or participate in it. For-profit employer exemptions from the Affordable Care Act contraception mandate under the Religious Freedom Restoration Act would constitute congressional and federal judicial action that violates the Establishment Clause, by shifting significant costs of observing religious beliefs against contraception from the employers who hold them to employees who don't. The brief concludes that keeping federal government action within the structural limits set by the Establishment Clause is a compelling interest that justifies denial of for-profit employer exemptions from the mandate under RFRA.

Amici on the brief are Frederick Mark Gedicks (Brigham Young University Law School), Vincent Blasi (Columbia Law School); Caitlin Borgmann (CUNY School of Law), Caroline Mala Corbin (University of Miami School of Law), Sarah Barringer Gordon (University of Pennsylvania Law School & Dept. of History), Steven K. Green (Willamette University College of Law), Leslie C. Griffin (William S. Boyd School of Law, University of Nevada, Las Vegas), B. Jessie Hill (Case Western Reserve University School of Law), Andrew M. Koppelman (Northwestern University Law School & Dept. of Political Science), Martha C. Nussbaum (The University of Chicago Law School & Dept. of Philosophy); Eduardo Peñalver (The University of Chicago Law School); Michael J. Perry (Emory University School of Law); Frank S. Ravitch (Michigan State University College of Law), Zoë Robinson (DePaul University College of Law), Lawrence Sager (University of Texas at Austin School of Law), Richard Schragger (University of Virginia School of Law), Micah Schwartzman (University of Virginia School of Law), Elizabeth Sepper (Washington University School of Law), Steven H. Shiffrin (Cornell University Law School), Nelson Tebbe (Brooklyn Law School) & Laura Underkuffler (Cornell University Law School).

Catherine Weiss, Natalie Kraner, Michael J. Hampson, Joseph A. Fischetti & Meg Slachetka of Lowenstein Sandler LLP served as counsel to the Amici.

January 30, 2014 in Contraception, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Monday, January 27, 2014

Republican Leaders Persist in Attacks on Women's Rights

Repub elephantThe New York Times editorial: A Formula for Repelling Women Voters:

Republican leaders have chosen an odd way to try to win back female voters alienated by relentless G.O.P. attacks on women’s health care and freedoms. Instead of backing off, they’re digging in, clinging to an approach that gave President Obama a 12-point advantage among women in the 2012 election and provided the slim margin of victory for Terry McAuliffe, the Democratic candidate for governor in Virginia, in 2013. On the national level and even in some red states, the party’s stance on women’s rights is plainly not helping it.

Yet the ideological tide rolls on. States dominated by Republicans continue to enact new abortion restriction. The Republican National Committee last week heard Mike Huckabee, the former governor of Arkansas, suggest that Democrats favor universal access to free contraception because they think women “cannot control their libido” without the help of “Uncle Sugar.” And this week, the Republican-led House is expected to pass the deceptively named No Taxpayer Funding for Abortion Act. . . .

January 27, 2014 in Abortion, Congress, Contraception | Permalink | Comments (0) | TrackBack (0)

Commentary on Little Sisters Case

SCOTUS Blog: Partial Win for Little Sisters, by Lyle Denniston:

The Supreme Court on Friday afternoon gave an order of Roman Catholic nuns some added protection against the enforcement of a part of the Affordable Care Act, and spared them — for now — from having to file a government form in order to be exempt. The order, released after weeks of uncertainty, came without noted dissent in the case of Little Sisters of the Poor v. Sebelius (application 13A691). . . .

Dorf on Law: RFRA v. Bureaucracy: The SCOTUS Order in Little Sisters, by Mike Dorf:

On Friday, the SCOTUS issued an order in The Little Sisters case.  The order reads, in full, as follows:

The application for an injunction having been submitted to  Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.

Notwithstanding the disclaimer at the end, it is hard not to read the order as reflecting at least some view on the merits.  After all, if the Court had accepted the government's representation that, because the Little Sisters use a "church plan," their employees would not receive contraceptive insurance in any event, it is hard to see how the equities could have warranted a stay. . . .

Balkinization: Not With a Bang...(The Supreme Court Wisely Preserves the Status Quo in Little Sisters), by Marty Lederman:

The Supreme Court issued this one-paragraph order today in the Little Sisters case: . . . 

This deftly crafted paragraph is a fine example of Solomonic judgment.  It leaves things just as they were and, for all practical purposes, just as they would have been in any event, as I explained here . . . .

January 27, 2014 in Contraception, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)