Saturday, October 7, 2017
Washington Post (Oct. 6, 2017): Trump administration narrows Affordable Care Act’s contraception mandate, by Juliet Eilperin, Amy Goldstein and William Wan:
In the next move on Trump's path to dismantle as many Obama-administration initiatives as possible, the Trump administration issued a rule today that many predict will leave hundreds of thousand of women without free access to contraceptives.
The Health and Human Services Department now allows a much wider group of employers and insurers to exempt themselves from covering birth control on religious or moral grounds. Although the administration estimates that "99.9%" of women will still receive free birth control through their insurance, the only basis of that estimate is the finite number of lawsuits that have been filed since Obama introduced the contraceptive mandate provision in 2012. Officials do not know, however, how many employers denied contraceptive coverage on "religious" or "moral" grounds before the ACA, and so an accurate number of women who may lose coverage cannot yet be estimated.
In 2014, the Supreme Court heard the Hobby Lobby case in which the Christian owners of the Hobby Lobby chain craft store objected to providing certain forms of birth control. The court ruled it illegal to impose the provision on "closely held corporations," the definition of which is sure to widen under Trump's provision.
Senior Justice Department officials said the guidance was merely meant to offer interpretation and clarification of existing law. But the interpretation seemed to be particularly favorable to religious entities, possibly at the expense of women, LGBT people and others.
The guidance, for example, said the ACA contraceptive mandate “substantially burdens” employers’ free practice of religion by requiring them to provide insurance coverage for contraceptive drugs in violation of their religious of beliefs or face significant fines.
This new rule will almost certainly prompt fresh litigation against the Trump administration, likely on the grounds of sex discrimination--as the mandate disproportionately affects women--and religious discrimination based on the argument that these exceptions enable employers to impose their religious beliefs on their employees.
Tuesday, May 9, 2017
New York Times (May 6, 2017): Opponents of Abortion Warily Measure Progress, by Jeremy W. Peters:
President Trump has proven himself to be a friend of abortion opponents. Left unclear, though, is whether he has any influence in the battle over the roughly $500 million Planned Parenthood receives each year. Moderate Republicans are not lining up to end support of Planned Parenthood. Even the bill passed in the House of Representatives last Thursday only reduces funding for Planned Parenthood for one year and leaves the organization eligible for money to support family planning. The Senate will prove more of a hurdle in any attempt to defund Planned Parenthood.
Conservative Republican attempts to revive interest in completely defunding Planned Parenthood have now taken the form of vilifying the organization for focusing more on defeating Republicans than on supporting women. The position is hopelessly out of step with American opinion. The majority of Americans believe the group should receive public funding for its work.
Christian conservatives, whom President Trump hopes to reward for supporting him in 2016, are becoming wary of his attempts to prove that he is a friend of their causes. He has, for example, refused to end workplace protections for LGBTQ employees put in place by President Obama in 2014, although last March he did make the protections harder to enforce. Christian conservatives are upset that the lives of those forced by Obama's executed order not the discriminate against LGBTQ employees are being "destroyed by the demands of the sexual identity activist class . . . ." Trump may not be up to the task of coming to the aid of groups who hold such extreme and unyielding perspectives.
Thursday, February 9, 2017
New York Times (Jan. 27, 2017): Duterte’s Free Birth-Control Order Is Latest Skirmish With Catholic Church, by Aurora Almendral:
The Philippines, where six million women have no access to contraceptives, delivers free birth control to indigent women through a program that also offers prenatal care and mandates that sex education be taught in schools and that companies provide reproductive health services to their employees. The program has been billed as "pro-life, pro-women, pro-children and pro-economic development."
But the Catholic Church has long fought the implementation of the program, going so far as to block key components of it via petitions filed in the Supreme Court. Unable to implement the program, the Health Department's budget has been slashed. Sex education in schools remains substandard, based in abstinence-only rhetoric. The Philippines is the only country in Asia where rates of pregnancy among teenagers increased.
President Duterte's administration is coming back strong against the court's decisions, vowing to uphold the law and eliminating some of the decisions' ambiguous wording. Two archbishops have acknowledged defeat.
One commentator, contrasting Duterte's clash with the church with President Donald Trump's reinstatement of the Reagan-era global "gag rule" forbidding foreign NGOs from receiving U.S. family planning funds if they perform, counsel or refer women for abortion services or advocate for the liberalization of abortion laws where they work, sees the policy of the United States, not the Philippines, as the real threat to women's health.
Wednesday, September 28, 2016
Bustle (Sept. 14, 2016): This Feminist Rabbi Is Dismantling the Abortion vs. Religion Debate, by Cate Carrejo:
Jewish values emphasize equality and dignity for all people above all. For Rabbi Lori Koffman this means taking care of everyone's health, economic security and well being. Reproductive justice is a major part of this value system.
Koffman is the chair of the National Council of Jewish Women's Reproductive Justice Initiative, which is aligned with a national coalition of access-to-abortion groups. While many see a contradiction between reproductive justice and religious values, Koffman sees them as inextricably intertwined.
"The decision whether and when to have a family is one of the holiest decisions anyone will ever make," Koffman says. "It really should be up to the woman and her partner if she has one or their partner if they have one and their own religious faith, any religious advisors if they have them, and really nobody else."
Koffman feels strongly that no one's religious values should be allowed to shut down someone else's opposing religious values. The basis of her commitment to reproductive justice, then, lies in the freedom to choose: "I can exercise my religious belief, because I can then choose to have an abortion or not. Someone who sees the world differently from a religious standpoint, then they can make the choice not to have an abortion because their religious values don't support abortion."
Koffman will continue speaking out for a reproductive justice that includes a multiplicity of reproductive health choices.
Friday, July 29, 2016
Huffington Post (Jul. 18, 2016): Voices of Faith Speak for Abortion Rights, by Marie Alford-Harkey:
Religious people who support abortion rights have largely been ignored in the debate over abortion. There is a widely held misconception that people with religious convictions are anti-abortion. This is a false dichotomy. It is not true, as Dr. Willie Parker has noted, that "people with a faith identity and abortion care are mutually exclusive.
For people of faith, making moral decisions is a sacred responsibility. According to this belief system, it is up to the individual, not the polity, to make decisions about his or her own body, "which we believe are gifts from God." It is thus unsurprising to find individuals of various belief systems advocating for dismantling barriers to abortion care. This kind of oppression is not consistent with religious faith; it contradicts it.
In support of allowing women on their own to make the personal decision to seek abortion care is the compassion that lies in ensuring that they have access to safe medical care. Indeed, healthcare for women that includes abortion care is a moral imperative. At the very least, ensuring safe access to abortion "avoids imposing one religious view on everyone."
Wednesday, May 25, 2016
Rewire (May 24, 2016): ACLU Sues for Complaints Filed Against Catholic Hospitals for Denying Reproductive Health Care, by Nicole Knight Shine:
The ACLU has brought an action under the Freedom of Information Act against the federal Centers for Medicaid & Medicare Services (CMS) seeking complaints against Catholic hospitals for denial of emergency medical treatment. CMS receives and investigates complaints of violations of the Emergency Medical Treatment and Active Labor Act, which requires that hospitals receiving federal funds provide emergency care to stabilize a medical condition, including a miscarriage. The ACLU complaint describes instances where women seeking treatment for miscarriages were turned away from emergency rooms at Catholic hospitals. Religious Directives written by the U.S. Conference of Catholic Bishops forbid doctors in Catholic hospitals from performing abortions unless a woman is in grave danger.
Roughly one in six hospital beds are in a Catholic facility, with the top four U.S. Catholic health systems expected to take in more $90 billion from Medicare and Medicaid in 2016, according to the ACLU’s 10-page lawsuit filed in U.S. District Court for the Southern District of New York.
Tuesday, March 29, 2016
Think Progress (March 29, 2016): How to Make Sense of the Baffling Order the Supreme Court Just Handed Down on Birth Control, by Ian Millhiser:
On Tuesday, the Supreme Court handed down an unusual order seeking more briefing in Zubik v. Burwell, a challenge to Obama administration regulations intended to expand access to birth control. Under the regulations at issue in Zubik, most employees must include contraceptive coverage in their employer-provided health plan. Employers who object to birth control as religious groups, however, may either fill out a form or write a brief letter seeking an exemption from this requirement. Once they do so, they are permitted to offer insurance that does not cover birth control, and, in most cases, their insurance provider will offer a separate, contraception-only plan to the employer’s workers.
The Supreme Court's order instructs the parties 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.” The Court appears interested in whether the employer could notify the insurance company that it does not wish to provide birth control when they contract for insurance and the insurance company could then notify employees that it will separately provide contraceptive coverage cost-free separate from the employers' plan. This solution would allow employees to receive coverage from the employer's insurer and avoid the need to purchase a separate policy.
The catch, however, is that it may not be possible for the federal government to put such a solution in place, at least without a change to federal law. Employer benefits are governed by complex federal statutes such as the Employee Retirement Income Security Act (ERISA). The Obama administration found authorization for its current rules in the existing ERISA statute, but it is not entirely clear that current law will enable them to move forward with the idiosyncratic solution described in the Supreme Court’s Tuesday order. Indeed, it is likely that one reason that the Court asked for additional briefing in this case was to determine whether the government has the authority to implement the justices’ preferred solution under ERISA.
Thursday, March 17, 2016
Professor Caroline Mala Corbin has posted to SSRN (here) the issue brief she wrote for the American Constitution Society on why the Religious Freedom Restoration Act does not provide a defense to the contraception mandate under the Affordable Care Act. The issue is presented in the case of Zubik v. Burwell.
Here is the abstract:
The Affordable Care Act requires that health care plans include all FDA-approved contraception without any cost sharing. In Hobby Lobby v. Burwell, for-profit businesses with religious objections successfully challenged this “contraception mandate.” In this term’s Zubik v. Burwell, it is religiously affiliated nonprofits like Baptist universities and Catholic Charities challenging the contraception benefit. But there is a major difference: these religiously affiliated nonprofits are exempt from the contraception mandate. Once they certify that they are religiously opposed to contraception and notify either their insurance carriers or the Department of Health and Human Services, the responsibility for contraception coverage shifts to private insurance companies. The nonprofits do not have to provide, pay for, or even inform their employees or students of the separate coverage.
Despite the ability to opt out of contraception coverage, many nonprofits complain that the religious accommodation itself imposes a substantial religious burden in violation of the Religious Freedom Restoration Act (RFRA). According to these nonprofits, providing notice of their objections triggers the provision of contraception to their employees and students, thus making them complicit in sin. Their RFRA claim cannot succeed. RFRA requires that the contraception regulations impose a substantial religious burden and fail strict scrutiny, and neither requirement is met. First, filing paperwork to receive an exemption is not a substantial burden on the nonprofits’ religious exercise. The nonprofits’ claims to the contrary are based on a mistake of law, and while court must defer to the nonprofits’ interpretation of religious theology, courts should not defer to their interpretation of federal law. Second, the contraception mandate passes strict scrutiny: it advances compelling government interests in women’s health and equality, and the accommodation provided to objecting nonprofits is the least restrictive means of accomplishing those interests.
Tuesday, March 1, 2016
ACLU Blog (Feb. 25, 2016): The Rising Threat of Religious Hospitals Denying Women Medical Care, by Alexa Kolbi-Molinas:
Catholic hospitals across the country follow the religious directives of the United States Conference of Catholic Bishops. This means that such hospitals will, for example, withhold medical services when a pregnant woman is hemorrhaging until her death is sufficiently imminent rather than induce labor to complete a miscarriage.
Currently, 10 of the 25 largest hospitals in the US are Catholic-affiliated. These hospitals receive federal funds, but they follow religious policies that deviate from the medical standard of care. These unlawful procedures have prompted the ACLU to file suit in cases such as Tamesha Means v. United States Conference of Catholic Bishops in order to force changes in policy.
Tuesday, January 19, 2016
New York Times (Jan. 17, 2016): On Paper, Italy Allows Abortions, but Few Doctors Will Perform Them, by Gaia Pianigiani:
Thirty years ago, the long fight for abortion rights resulted in a law permits abortion with ninety days of pregnancy and later for women in mental or physical danger or in cases of serious fetal pathologies. But nearly three-quarters of the country's gynecologists--more in some regions--are conscientious objectors to the law, reflecting the influence of the Roman Catholic Church in the delivery of medical care. Many non-objecting physicians, who tend to be part of the older generation of practitioners, are approaching retirement age. Non-invasive abortions are completely unavailable in some regions, despite a national directive that has been in place since 2009. The European Committee of Social Rights has deemed the lack of access to abortion in certain regions detrimental to the health of women.
Saturday, October 17, 2015
(Guardian, Oct. 14, 2015): Catholic hospital denies Michigan woman treatment on religious grounds, by Ryan Felton:
Weeks after learning she would give birth to her third child, Jessica Mann was faced with a difficult decision: because she was stricken by a life-threatening brain tumor, her doctor recommended she have her fallopian tubes tied at the time of her scheduled cesarean section delivery, later this month.
Mann agreed to undergo the procedure at her hospital to prevent the risk of a future pregnancy exacerbating her tumor. But the hospital, Genesys Regional Medical Center in Grand Blanc, Michigan, declined on religious grounds.
The ACLU has filed a complaint with the Michigan department of licensing and regulatory affairs on Mann's behalf. Ethical and Religious Directives developed by the US Conference of Catholic Bishops prohibit facilites from performing tubal ligations. The Directives govern Catholic-sponsored hospitals in the U.S., and according to the ACLU and Mergerwatch as of 2011, one in 10 acute-care hospitals are Catholic sponsored or affiliated. ACLU attorney Brook Tucker state, "As Catholic hospitals become the sole option for more people, as they've merged with secular entities . . . they become more empowered to impose their will on the public because there is no other recourse."
Tuesday, February 24, 2015
Vermont Free Press: Lawsuit targets Vermont over abortion, by Elizabeth Murray:
Alan Lyle Howe says his opposition to abortion is more than just a moral belief — it's a religious conviction.
But Vermont's state-offered health plans force Howe to choose between his pro-life beliefs and insurance coverage, because all plans offered through Vermont Health Connect include a fee for elective abortion coverage, said his lawyer, Casey Mattox. . . .
Thursday, February 12, 2015
Third Circuit Court of Appeals Rejects Challenge by Several Religious Groups to Federal Contraception Rule
Lancaster Online/AP: Court nixes faith-based birth control mandate challenge:
An appeals court has ruled that the birth control coverage required by federal health care reforms does not violate the rights of several religious groups because they can seek reasonable accommodations.
Two western Pennsylvania Catholic dioceses and a private Christian college had challenged the birth control coverage mandates and won lower-court decisions. However, the U.S. 3rd Circuit Court ruling Wednesday said the reforms place "no substantial burden" on the religious groups and therefore don't violate their First Amendment rights. . . .
The opinion is available here.
Tuesday, January 20, 2015
NPR: Pope Francis Says Catholics Don't Need To Breed 'Like Rabbits', by Jasmine Garsd:
On his return trip from Asia, Pope Francis made strong statements supporting the church's ban on artificial means of birth control. He also said Catholics should practice "responsible parenthood" and don't have to breed "like rabbits." . . .
Reuters: Pope says birth control ban doesn't mean breed 'like rabbits', by Philip Pullella:
Catholics should not feel they have to breed "like rabbits" because of the Church's ban on contraception, Pope Francis said on Monday, suggesting approved natural family planning methods. . . .
The leader of the 1.2-billion-strong Roman Catholic Church restated its ban on artificial birth control, adding there were "many ways that are allowed" to practise natural family planning. . . .
Monday, December 8, 2014
The Salt Lake Tribune/AP: Religious nonprofits challenge birth-control coverage in health law. by Kristen Wyatt:
Faith-based nonprofit organizations that object to covering birth control in their employee health plans are in federal court Monday to challenge a birth-control compromise they say still compels them to violate their religious beliefs.
The plaintiffs include a group of Colorado nuns and four Christian colleges in Oklahoma. They are already exempt from covering contraceptives under the federal health care law.
But they say the exemption doesn’t go far enough because they must sign away the coverage to another party, making them feel complicit in providing the contraceptives. . . .
Thursday, October 23, 2014
Comments on ACA Contraception Accommodation Submitted by Public Rights/Private Conscience Project on Behalf of Legal Scholars
Public Rights/Private Conscience Project (Columbia Law School): PRPCP Leads 60+ Law Professors In Submitting Comments On ACA Contraception Accommodation, by Kara Loewentheil:
Back in August the Obama Administration responded to the Supreme Court’s opinion inHobby Lobby and its order in Wheaton College by issuing two new sets of regulations to govern the accommodation process for employers with religious objections to the Affordable Care Act’s contraceptive coverage requirement. One was an interim final regulation, promulgated by the Department of Labor, that responded to the Wheaton College order by allowing objecting non-profit organizations that believed notifying their insurance company or third-party administrator (TPA) of their objection was also a violation of their RFRA rights to simply notify the government directly, after which DOL and HHS would work together to notify the insurance company or TPA. (I’ve written elsewhere about why this is, not to put too fine a point on it, a somewhat pointless exercise). The other was a proposed regulation that would define what kinds of for-profit entities could seek an accommodation under RFRA based on the Hobby Lobby ruling.
These regulations were open for public comments, and PRPCP drafted comments on both rules that were signed by more than 60 prominent legal academics. . . .
Monday, September 8, 2014
St. Louis Public Radio: Legislator Tells Federal Appeals Court Why He Objects To Birth-Control Coverage, by Jo Mannies:
The lawyer for state Rep. Paul Wieland, R-Imperial, predicts that his suit against mandated contraceptive coverage will help launch an avalanche of court challenges to the Affordable Care Act’s provision requiring insurance companies to offer such benefits.
But first Wieland needs to persuade a federal appeals court to reinstate his case. A lower court had tossed it out. . . .
Wednesday, August 27, 2014
California Health Officials Quash Catholic Employers' Efforts to Deprive Employees of Abortion Coverage
The Los Angeles Times: A women's rights victory as California nixes an attack on abortion coverage, by Michael Hiltzik:
With minimal fanfare, California state officials have nixed an underhanded effort by two Catholic-affiliated universities and their insurers to deprive the universities' employees of insurance coverage for abortions.
The move by the Department of Managed Health Care is one of the strongest statements in favor of women's reproductive health rights you're likely to hear from officials of any state, at a time when those rights are under systematic attack. So it's proper to pay attention. . . .
The Hill: GOP Senate candidates mum on birth control mandate change, by Elise Viebeck:
Republican Senate candidates are staying silent on President Obama's latest changes to the birth control coverage mandate, even as the policy catches flak from the religious right.
Top GOP hopefuls haven’t weighed in on the issue since Friday, when the administration announced new measures meant to accommodate religious groups and businesses owners who object to their insurance covering birth control. . . .
Tuesday, August 26, 2014
Alba Ruibal (CONICET Argentina; European University Institute - Department of Law) has posted Reform and Backlash in Mexico's Abortion Law: Political and Legal Opportunities for Mobilization and Countermobilization on SSRN. Here is the abstract:
The restrictive legal framework of abortion in Latin America has started to change during the past decade, as legislative reforms and high court decisions have liberalized, to different extents, the abortion laws in Colombia, Mexico City, Brazil, Argentina and Uruguay. Feminist mobilization has been the crucial factor of change in this area of rights, and conservative religious actors have been the main opponents of reform. Political and legal factors contribute to understand the timing and outcomes of legal changes, as well as the capacity of movement and counter-movement to influence reform processes. Based on field work carried out in Mexico, this paper analyzes the main components of the legal and political opportunities that have been relevant in abortion legal reform in that country, which offer important points of reference for other Latin American cases. Drawing on social movement theory and legal studies literature, this paper highlights the importance of relatively stable components of political opportunities such as the type of institutional organization of federalism, which determines the location of abortion policy - and the possibilities of social movements to influence it, as well as of institutional arrangements and cultural understandings regarding the relationship between State and Church. Regarding more contingent political factors, the analysis of this case confirms that divisions among elites, and in particular post-electoral conflict, may create conditions for rights advocacy actors, whereas politicians’ search for legitimacy and short-term electoral incentives may favor counter-reformers, especially at the local level - where there may be greater Church’s influence and less accountability mechanisms. With regards to the legal opportunity, the paper highlights the role of the rules of access to courts and legal standing in constitutional review proceedings, as determinants of the types of actors and claims that reach the courts. The analysis of the Mexican case shows how constitutional courts, in their quest for institutional legitimacy, may expand the legal opportunity for the participation of social actors at judicial proceedings, when facing decisions that involve highly controversial issues and social conflicts. Finally, the paper shows how rules of opinion formation at courts may affect final judicial outcomes and the influence of social actors in them.