Thursday, July 31, 2014
Does Hobby Lobby Open Door To Renewed Conscience-Based Claims for Exemptions from Abortion Restrictions?
MSNBC: Satanists Aren't the Only Ones Following Hobby Lobby's Lead, by Irin Carmon:
On Monday, the Satanic Temple drew headlines for declaring that, in the wake of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, it was “asserting a religious exemption from the burden of state mandated ‘informational’ abortion materials for those who share their deeply held beliefs.”
In other words, they wanted a conscience clause from laws intended to dissuade women from having abortions by mandating an ultrasound or that a doctor impart biased or medically-inaccurate information about abortion. . . .
But the Satanists are hardly the first to use religion to make an affirmative argument for reproductive rights. For decades, pro-choice activists have been trying to make a religious claim for their view – and generally failing. . . .
But now that the Supreme Court has opened the door to more robust religious exemptions under RFRA, there might be a new opportunity for supporters of abortion rights to try their luck. . . .
Saturday, July 26, 2014
Gender & Sexuality Law Blog: When Reality Becomes Satire: Anti-Contraception Nurse Sues Family Planning Clinic For Not Hiring Her, by Kara Loewentheil:
And now for an exercise in absurdity: a nurse who refuses to prescribe contraception is suing a family planning clinic because it refused to hire her. It refused to hire her for a very simple reason, which probably seems obvious: It’s a family planning clinic, and she refused to perform family planning services. Rather than take that as a fairly reasonable basis for rejection, and conclude that perhaps she would be happier and of more use in a different context (a crisis pregnancy center, perhaps), the nurse decided to sue the clinic, claiming that it discriminated against her on the basis of her religion. . . .
Wednesday, July 23, 2014
Salon: Women who don’t use birth control explain why not, slut-shame those who do, by Jenny Kutner:
Hint: It's because they don't understand how birth control works
In the aftermath of the Hobby Lobby ruling that will effectively allow corporations to prevent their female employees from accessing certain forms of contraception, BuzzFeed posted explanations from 22 of its own female employees about why they use birth control. The responses ranged from medical — “for my endometriosis” — to ethical — “because it’s none of your business” — to practical — “because condoms break sometimes.” All were different, but each reflected some of the most common reasons that more than 99 percent of sexually active adult women use some form of contraception.
Well, the <1 percent of women who don’t use birth control took it upon themselves to respond to BuzzFeed by explaining their own reproductive choices, listing the reasons theydon’t use birth control on the faith-centered blog Catholic Sistas (not a spelling error). But instead of simply offering up their “logical” (read: totally putative) justifications, the women also illustrated a general lack of understanding of how birth control works, as well as what it means not to try to “force others to follow what we believe” by sending preachy messages about the virtue of sexing to make babies. . . .
Forbes: Eden Foods To Grocers: Stick With Us Despite Birth Control 'Attack', by Claire O'Connor:
Like craft chain Hobby Lobby, Eden Foods sued the Department of Health and Human Services in a bid to reverse what its devoutly Catholic founder calls “unconstitutional government overreach.”
Michael Potter, who started the Michigan-based former co-op in the 1960s, doesn’t believe he should have to cover certain types of birth control as part of his company’s health insurance plan as required by the Affordable Care Act.
In recent days a handful of regional grocery co-ops have threatened to boycott, with activists advising those concerned about women’s health to return the company’s products to Whole Foods and its ilk. . . .
Tuesday, July 22, 2014
Obama Administration To Revise Accommodation for Certain Religious Non-Profits That Object to Contraception Rule
The Wall Street Journal: Obama Administration to Revise Part of Contraception Rule, by Louise Radnofsky:
Wheaton College Objected to Allowing Contraceptive Coverage to Be Provided by an Insurance Company
The Obama administration said Tuesday it will revise a compromise arrangement for religiously affiliated universities and charities that object to providing contraception in workers' health insurance plans, in response to a Supreme Court order earlier this month.
A majority of Supreme Court justices granted Wheaton College, an Illinois Christian school, a temporary reprieve from contraception coverage requirements in the Affordable Care Act on July 3. That was days after the high court ruled that closely held for-profit companies such as arts-and-crafts chain Hobby Lobby should be allowed to opt out of the provision if their owners have religious objections to certain forms of birth control. . . .
Wednesday, July 16, 2014
The Hill: Dem birth control bill stalls, by Ramsey Cox:
Senate Republicans on Wednesday blocked legislation that would require companies to provide birth control coverage in their employee healthcare plans.
The bill failed to advance in a 56-43 vote, with Republican Sens. Lisa Murkowski (Alaska), Susan Collins (Maine) and Mark Kirk (Ill.) voting with Democrats. . . .
Monday, July 14, 2014
SCOTUS blog: A Bill to Undo Hobby Lobby, by Lyle Denniston:
With fewer than a dozen crucial words, a group of U.S. senators and representatives this week proposed what they have called a “legislative fix” to undo the Supreme Court’s June 30 decision inBurwell v. Hobby Lobby. Here is the key language in the Senate version, bill number S. 2578: ”Application: Subsection (a) shall apply notwithstanding any other provision of federal law, including Public Law 103-141.”. . .
The bill would modify — but without directly amending — the federal law that was the basis of the Supreme Court’s ruling — that is, the Religious Freedom Restoration Act (officially enacted as Public Law 103-141). The new measure would have the effect of simply overruling the Hobby Lobby decision. Identical versions were introduced in the Senate and House on Wednesday. . . .
Friday, July 4, 2014
Court Issues Order on Contraception Mandate that Reinforces Female Justices' Concerns About Hobby Lobby Ruling's Scope
The New York Times: Birth Control Order Deepens Divide Among Justices, by Adam Liptak:
In a decision that drew an unusually fierce dissent from the three female justices, the Supreme Court sided Thursday with religiously affiliated nonprofit groups in a clash between religious freedom and women’s rights.
The decision temporarily exempts a Christian college from part of the regulations that provide contraception coverage under the Affordable Care Act. . . .
The reason this order is so frustrating is that Justice Alito's opinion in Hobby Lobby emphasized that its ruling was justified in large measure because the accommodation already provided to certain non-profits could simply be extended to closely held for-profits. In relying on the existing accommodation, the Court implied that the accommodation was constitutionally acceptable. Indeed, the Court dismissed Justice Ginsburg's concerns about the opinion's scope, referring to the existing accommodation for non-profits and saying, "[O]ur holding is very specific." Justice Kennedy in concurrence even felt obliged to issue a separate reassurance: "[I]t should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent." Justice Kennedy pointed out that "there is an existing, recognized, workable, and already-implemented framework to provide coverage" and "[t]hat accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs" (emphasis added). The majority itself assured that the goverment's accommodation "does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion."
There was a clue, however, in the majority's opinion, that left Justice Ginsburg and others concerned as to whether the Court was sincere in suggesting it would ultimately find the existing accommodation adequate. The Court noted, "We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims," referring to Little Sisters of the Poor, a case in which the Court issued a previous order addressing the accommodation as applied to a non-profit entity. This caveat, buried in an opinion full of reassurances about the decision's narrow scope, coupled with today's order supports Justice Ginsburg's concern that the true implications of Hobby Lobby are broad and as yet unclear.
Monday, June 30, 2014
Here is the link to UltraViolet's Twitter Q&A on Hobby Lobby, which I participated in this morning.
The effects of Hobby Lobby decision are already being felt in the non-profit context, with the 11th Circuit enjoining the government, pending appeal, from enforcing the contraception rule against Eternal Word Television Network, a tax-exempt non-profit organization, "[i]n light of the Supreme Court's decision today" in Hobby Lobby. Also, via Lyle Denniston at SCOTUSblog: "Over the dissents of two Justices, the Supreme Court on Monday evening temporarily barred enforcement of the birth-control mandate against Wheaton College, a non-profit religious institution in Illinois."
Justice Alito wrote the opinion. There are qualifications to the Court's ruling. It appears to be limited to closely held corporations and to contraception, for example. SCOTUSblog is live blogging the decision here. The opinion is available here. I will be participating in a Twitter chat hosted by UltraViolet to answer questions about the opinion.
Tuesday, June 24, 2014
The Washington Post: Awaiting Supreme Court’s Hobby Lobby ruling, public favors contraception mandate, by Cathy Lynn Grossman:
The U.S. Supreme Court is expected to finally issue its ruling this week in the highly anticipated case of the craft companies vs. Obamacare. . . .
But to the general public, this is seen as a showdown between employers — the evangelical Green family behind Hobby Lobby and the Mennonite Hahn family that owns the Conestoga cabinet company — and the employees’ personal reproductive choices under their insurance. . . .
Tuesday, June 17, 2014
NPR: 6 Questions About Contraception Coverage And The Supreme Court, by Julie Rovner:
One of the most watched issues before the Supreme Court this term may turn on the question of religious freedom. But it will also likely determine how women will be able to access a key provision of the Affordable Care Act – one seeking to guarantee no-cost prescription contraception in most health insurance plans.
The justices' ruling on Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp v. Sebelius, two cases that are being considered together, is expected by the end of this month. The court will decide whether those companies, and potentially all other for-profit companies, must abide by the so-called contraceptive mandate. It's a complicated legal thicket, so here is some background. . . .
Friday, April 4, 2014
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. . . .
Thursday, April 3, 2014
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. . . .
Friday, March 28, 2014
Balkinization: Religious Accommodations Cost More than Money, by Kara Loewentheil:
Thursday, March 27, 2014
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.
Tuesday, March 25, 2014
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. . . .
Monday, March 24, 2014
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.
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. . . .