Reproductive Rights Prof Blog

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CUNY School of Law

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Wednesday, January 1, 2014

Marty Lederman on Little Sisters of the Poor

Marty Lederman on Balkinization provides an excellent elaboration of the argument I made in my previous post regarding the slippery slope that follows from the argument that a non-profit group "triggers" morally objectionable contraceptive coverage merely by signing an opt-out notice:

. . . [T]he whole point of the government's "secondary" accommodation is to allow nonprofits such as Notre Dame to refuse to “contract, arrange, pay, or refer for contraceptive coverage,” even if they do offer health insurance.
Why isn't that enough to alleviate any possible, alleged burden on Notre Dame's religious exercise?

i.  Notre Dame's principal argument is that by filing a certification asserting that it opposes contraceptive coverage, as the HHS Rule requires, it would thereby "authorize" third parties--Aetna and Meritain Health, Inc.--to provide such coverage, and thereby become morally responsible for the use of the contraceptives subsidized by those other parties.

This argument, however, is premised on a simple mistake of fact and law (not religious doctrine):  The self-certification Notre Dame would sign--substantively identical to the assertions of objection that it makes in its very RFRA complaint--merely notifies the relevant third parties that Notre Dame is eligible for and exercising the available religious accommodation because it objects to providing contraceptive coverage.  By certifying, Notre Dame would not "authorize" anything:  Federal law does that work.  As the district court explained, “[i]f Notre Dame opts out of providing contraceptive coverage, as it always has and likely would going forward, it is the government who will authorize the third party to pay for contraception.” 

Of course, Notre Dame is correct that its certification of religious objection would have a legal effect:  As with any religious accommodation of this kind, the whole point of the accommodation is that the opting out by the objector would shift the responsibility to someone else (whether a state actor or, as here, another private party) to do what the religious objector declines to do.  But if that is enough to establish a substantial burden on Notre Dame's religious exercise, then it would effectively mean that governmental religious accommodations taking the form of "opt outs" for dissenters would themselves often create the very conflict with religion that they are designed to alleviate--and would thus threaten to prevent the state from both accommodating religion and satisfying its state interests through an alternative means, such as the use of a non-objecting party.  

For example, take a law that permits individual religious pharmacists to refuse to dispense certain drugs, and that provides that in such a case the drugs shall be dispensed by a nonobjecting pharmacist.  Under Notre Dame's theory, the first pharmacist could object to the accommodation--and insist that customers not receive the drug at all--because its refusal to dispense would "trigger," or "authorize," the second pharmacist to commit a morally objectionable act. . . .

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

Marty Lederman on Little Sisters of the Poor

Marty Lederman on Balkinization provides an excellent elaboration of the argument I made in my previous post regarding the slippery slope that follows from the argument that a non-profit group "triggers" morally objectionable contraceptive coverage merely by signing an opt-out notice:

. . . [T]he whole point of the government's "secondary" accommodation is to allow nonprofits such as Notre Dame to refuse to “contract, arrange, pay, or refer for contraceptive coverage,” even if they do offer health insurance.
Why isn't that enough to alleviate any possible, alleged burden on Notre Dame's religious exercise?

i.  Notre Dame's principal argument is that by filing a certification asserting that it opposes contraceptive coverage, as the HHS Rule requires, it would thereby "authorize" third parties--Aetna and Meritain Health, Inc.--to provide such coverage, and thereby become morally responsible for the use of the contraceptives subsidized by those other parties.

This argument, however, is premised on a simple mistake of fact and law (not religious doctrine):  The self-certification Notre Dame would sign--substantively identical to the assertions of objection that it makes in its very RFRA complaint--merely notifies the relevant third parties that Notre Dame is eligible for and exercising the available religious accommodation because it objects to providing contraceptive coverage.  By certifying, Notre Dame would not "authorize" anything:  Federal law does that work.  As the district court explained, “[i]f Notre Dame opts out of providing contraceptive coverage, as it always has and likely would going forward, it is the government who will authorize the third party to pay for contraception.” 

Of course, Notre Dame is correct that its certification of religious objection would have a legal effect:  As with any religious accommodation of this kind, the whole point of the accommodation is that the opting out by the objector would shift the responsibility to someone else (whether a state actor or, as here, another private party) to do what the religious objector declines to do.  But if that is enough to establish a substantial burden on Notre Dame's religious exercise, then it would effectively mean that governmental religious accommodations taking the form of "opt outs" for dissenters would themselves often create the very conflict with religion that they are designed to alleviate--and would thus threaten to prevent the state from both accommodating religion and satisfying its state interests through an alternative means, such as the use of a non-objecting party.  

For example, take a law that permits individual religious pharmacists to refuse to dispense certain drugs, and that provides that in such a case the drugs shall be dispensed by a nonobjecting pharmacist.  Under Notre Dame's theory, the first pharmacist could object to the accommodation--and insist that customers not receive the drug at all--because its refusal to dispense would "trigger," or "authorize," the second pharmacist to commit a morally objectionable act. . . .

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

Justice Sotomayor Temporarily Blocks Contraception Rule in Challenge By Religiously Affiliated Groups

The New York Times: Justice Blocks Contraception Mandate on Insurance in Suit by Nuns, by Steve Kenny & Robert Pear:

Justice Sonia Sotomayor on Tuesday temporarily blocked the Obama administration from forcing some religious-affiliated groups to provide health insurance coverage of birth control or face penalties as part of the Affordable Care Act.

Acting at the request of an order of nuns in Colorado, Justice Sotomayor issued the stay just hours before the requirement was to go into effect on New Year’s Day. She gave the Obama administration until Friday to respond to the Supreme Court. . . .

____________________________________________

It's frustrating that this story repeats the claimants' assertion that they are being "forced" to "provide" contraceptive coverage.  In fact, as the story later acknowledges, the nuns are allowed to opt out of the contraceptive coverage requirement simply by completing a form, in which case the insurer would provide coverage separately.    But that isn't enough for the plaintiffs.  According to their lawyer, "“The Sisters would also be required to sign a form that triggers the start of that coverage . . . . In good conscience, they cannot do that. So the ‘accommodation’ still violates their religious beliefs.”  Under that logic, the salary they pay their employees could be seen to "trigger" all kinds of acts they disagree with -- including the out-of-pocket purchase of contraception if the health plan doesn't cover it.  Employers who employ and serve a diverse population ought not to be able to impose their religious beliefs on their employees in this way.

-CEB

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

Monday, December 30, 2013

Marty Lederman on Hobby Lobby Case

Marty Lederman has been writing a lot on the Hobby Lobby/Conestoga Wood challenges to the ACA contraceptive rule.  Here is his latest post.

Balkinization: Hobby Lobby Part III-A—Does federal law substantially pressure employers to offer health insurance coverage in violation of religious obligations, even though there is no “Employer Mandate”?, by Marty Lederman:

The plaintiffs in Hobby Lobby and Conestoga Wood argue that federal law compels them to act contrary to their religious obligations, by requiring them to offer (and pay for and administer) employee health insurance plans that include contraception coverage. As I explained in my most recent post, that turns out to be a simple misreading of the law:  Although employee plans must include contraception coverage, the Affordable Care Act does not require that employers offer such plans to their employees, nor even impose substantial pressure upon them to do so. . . .

_______________________________________

Earlier posts are here, here, and here.

December 30, 2013 in Contraception, In the Courts, Religion and Reproductive Rights, Supreme Court, Weblogs | Permalink | Comments (0) | TrackBack (0)

New Abortion Ban in Spain Doesn't Go Far Enough for Some

The News International: Huge crowds hold Madrid mass after new abortion law:

Spain flagMADRID: Tens of thousands of Roman Catholics joined in an open-air mass in central Madrid on Sunday to celebrate the Holy Family, just days after the Spanish government agreed to tighten the abortion law.

As large crowds of believers packed the central Plaza de Colon square, many of them urged the government to go even further and implement an outright abortion ban without exceptions. . . .

_________________________________________

Spain had only just liberalized its abortion laws in 2010.

December 30, 2013 in Abortion Bans, International, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 24, 2013

Federal Judge Rules Notre Dame Unlikely To Prevail In Challenge to Contraception Rule

The Huffington Post: Notre Dame Dealt Big Rejection In Challenge Against Birth Control Coverage, by Tom Coyne:

A federal judge said he doesn't think the University of Notre Dame will succeed in its challenge to a federal health care law requirement that it provide students and employee health plans that cover birth control.

U.S. District Judge Philip Simon on Friday rejected the Catholic school's request for an injunction, prompting Notre Dame to file an appeal Monday to the U.S. Seventh Circuit Court of Appeals in Chicago. . . .

___________________________________

The ACLU provides a summary of the challenges to the ACA contraceptive rule and the status of each case here.

December 24, 2013 in Contraception, In the Courts, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, December 13, 2013

PBS Explores The Consequences of El Salvador's Complete Ban on Abortions

PBS - Religion & Ethics Newsweekly:  El Salvador Abortion Ban:

Strongly influenced by Catholic teachings, the country of El Salvador now forbids all abortions. Fred de Sam Lazaro reports from San Salvador on the consequences for many women when abortion is considered murder, regardless of the circumstances.

December 13, 2013 in Abortion Bans, International, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Monday, December 9, 2013

NYT Editorial on ACLU's Suit Against Catholic Bishops

BishopThe New York Times editorial: When Bishops Direct Medical Care:

Beyond new state efforts to restrict women’s access to proper reproductive health care, another, if quieter, threat is posed by mergers between secular hospitals and Catholic hospitals operating under religious directives from the nation’s Roman Catholic bishops. These directives, which oppose abortions, inevitably collide with a hospital’s duty to provide care to pregnant women in medical distress. This tension lies at the heart of a federal lawsuit filed last week by the American Civil Liberties Union. . . . 

December 9, 2013 in In the Courts, In the Media, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Saturday, December 7, 2013

The Potentially Broad Implications of a Supreme Court Ruling on the Contraception Mandate

SFGate: Supreme Court birth control ruling could ripple widely, by Bob Egelko:

If a corporate employer can refuse on religious grounds to provide workplace insurance for contraception, what about employers with religious objections to blood transfusions or vaccinations? Or those who believe in healing by prayer?

Those questions lurk below the surface of the challenge the U.S. Supreme Court has agreed to review to regulations in the new federal health care law requiring employers to make contraceptive coverage available to their employees. That mandate, two groups of corporate owners argue, violates their freedom of religion. . . .

December 7, 2013 in Contraception, Religion, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 3, 2013

ACLU Sues Catholic Bishops Over Abortion Directives to Hospitals

The New York Times: Bishops Sued Over Policies on Abortion at Hospitals, by Erik Eckholm:

The American Civil Liberties Union announced on Monday that it had filed a lawsuit against the nation’s Roman Catholic bishops, arguing that their anti-abortion directives to Catholic hospitals hamper proper care of pregnant women in medical distress, leading to medical negligence.

The suit was filed in federal court in Michigan on Friday on behalf of a woman who says she did not receive accurate information or care at a Catholic hospital there, exposing her to dangerous infections after her water broke at 18 weeks of pregnancy. . . .

December 3, 2013 in Abortion, In the Courts, Religion and Reproductive Rights, Reproductive Health & Safety | Permalink | Comments (0) | TrackBack (0)

Saturday, November 30, 2013

Fox News Perpetuates Hobby Lobby's False Claims That Plan B Is An Abortion Pill

Media Matters: Fox Uses Hobby Lobby Case To Falsely Call Morning-After Pill Abortion, by Brian Powell & Samantha Wyatt:

Fox News repeatedly conflated the emergency contraceptive Plan B (also known as the morning-after pill) with abortion while covering two Supreme Court cases brought by companies that object to the Affordable Care Act's (ACA) birth control coverage benefits. However, experts agree that the morning-after pill is not abortion -- it prevents pregnancy but cannot stop pregnancy after fertilization takes place. . . .

November 30, 2013 in Contraception, In the Media, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

The Establishment Clause and the Contraception Mandate Cases

Balkinization: The Establishment Clause and the Contraception Mandate, by Micah Schwartzman, Richard Schragger, and Nelson Tebbe:

Yesterday the Supreme Court granted certiorari in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius, which ask whether large, for-profit corporations and their religious owners can assert rights of religious free exercise under the Religious Freedom Restoration Act (RFRA), and, if so, whether their rights are violated by the government’s requirement that they pay for health insurance that includes coverage for various forms of contraception. . . .

November 30, 2013 in Contraception, In the Courts, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, November 29, 2013

New Yorker Piece on the Stakes in the Contraception Mandate Litigation

The New Yorker: The Stakes in the Hobby Lobby Birth-Control Case, by Amy Davidson:

Is the case of Sebelius v. Hobby Lobby Stores, which the Supreme Court agreed to hear this week, about health-care mandates or about religion? Hobby Lobby’s owners, who are Christian—they buy ads in newspapers on Easter recommending that people get to know Jesus Christ—feel that their right to worship freely is being denied by the Affordable Care Act. Hobby Lobby is a privately held for-profit company, with five hundred stores selling arts-and-crafts supplies and thirteen thousand full-time employees, not all of them Christians. . . .

November 29, 2013 in Contraception, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

New Emergency Contraception Label Undermines Corporations' Objections To Health Plans Covering the Pills

As I was saying in my last post, the evidence shows that emergency contraceptive pills work before fertilization, not after (contrary to the claims of corporations like Hobby Lobby).  Now European health authorities are changing the labeling to reflect this information.  

-CEB

The New York Times:  New Birth Control Label Counters Lawsuit Claim, by Pam Belluck:

European health authorities have made two significant changes to the label of an emergency contraception pill that is equivalent to Plan B One-Step. One of the changes could be relevant to two cases that the Supreme Court added to its docket on Tuesday.

The new label of the drug, Norlevo, says it “cannot stop a fertilized egg from attaching to the womb,” contradicting a claim by some abortion opponents that has fueled their objections to the Affordable Care Act.

The new label also warns that Norlevo loses effectiveness in women weighing more than 165 pounds and does not work in women over 176 pounds.

Norlevo is not sold in the United States, but Plan B One-Step and two generic versions are identical to it. . . .

November 29, 2013 in Contraception, In the Courts, Religion and Reproductive Rights, Science | Permalink | Comments (0) | TrackBack (0)

Monday, November 25, 2013

Religious Freedom Restoration Act, Meant To Shield Religious Practices from Government Intrusion, Is Now Invoked by Corporations to Discriminate Against Women

The Los Angeles Times: 1993 religious freedom act is at heart of contraception case, by David Savage:

When the Supreme Court confronted the case of Native Americans who were fired for smoking an illegal drug during a religious ceremony, Justice Antonin Scalia called a halt to granting religious exemptions under the Constitution's protection for the "free exercise" of religion. It "would be courting anarchy" to permit "religious objectors" to ignore the law, he said.

But Democrats in Congress rose up to overturn his decision and to bolster religious freedom.

Backed by a broad coalition, including the American Civil Liberties Union and the Christian Legal Society, the Religious Freedom Restoration Act became law 20 years ago this month. It declared that the government may not "substantially burden a person's exercise of religion" unless it had a "compelling" reason to do so.

Now, that little-known law is at the center of a major "religious liberty" challenge to President Obama's health insurance overhaul and its requirement that employers pay for full contraceptive coverage for their female employees. . . .

November 25, 2013 in Contraception, In the Courts, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, November 22, 2013

Catholic Bishops Seeking "Exit Strategy" for Hard Line on Contraception Mandate?

National Catholic Reporter: Behind scenes, Catholic bishops seek an exit strategy for Obamacare mandate, by David Gibson:

After a closed-door session at their annual meeting in Baltimore this month, the U.S. Catholic bishops issued an unusual "special message" reaffirming their long-standing opposition to the Obama administration's birth control insurance mandate. . . .

But after repeatedly drawing that line in the sand, a growing number of bishops have begun to push back, arguing that such hard-line rhetoric has put them in an untenable position. These bishops do not want to close Catholic institutions over a birth control policy -- and they say they actually can't do so in most cases.

In addition, they argue that there is no reason to try -- the exemptions and accommodations in the mandate are sufficient, some say, and the church's teaching that access to good, affordable health care is a basic right should outweigh any remaining reservations.

That's why those familiar with the deliberations in Baltimore note that the statement is carefully worded to acknowledge that each bishop can make his own arrangements on health insurance -- as some are doing -- and it begins to provide cover for the entire hierarchy as the prelates try to find an exit strategy. . . .

November 22, 2013 in Contraception, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Federal District Judge Grants Catholic-Affiliated Employers Temporary Delay in Complying with Contraception Mandate

Herald-Star: Catholics win delay, by Kevin Begos:

A federal judge ruled Thursday that two Western Pennsylvania Catholic groups don't immediately have to comply with mandates in the federal health care overhaul law, and has granted them a temporary delay while the issue is appealed to higher courts.

U.S. District Judge Arthur J. Schwab wrote that forcing schools and charities related to the Pittsburgh and Erie Catholic dioceses to comply with the Affordable Care Act could result in decreased donations, loss of employees and fines that could force the closure of some church programs. The dioceses object to the law's requirement that contraception, including sterilization, be offered in employee health care plans. . . .

H/t: Roz Litman

_________________________________

To be clear, the contraception mandate does not apply at all to "pervasively sectarian entities," including churches and some parochial schools.  The Department of Health and Human Services later provided further accommodation to not-for-profit employers such as hospitals, universities, and charities that object on religious grounds to the provision of contraceptive services.  These employers are not forced to pay for contraceptives themselves. Instead, their insurance providers will directly pay for the services.  But even that accommodation hasn't satisfied some employers.  Here is a summary of the exemptions for employers who object to the mandate on religious grounds.  Here is a summary of challenges to the contraception rules by both non-profit and for-profit employers.

-CEB

November 22, 2013 in Contraception, In the Courts, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 19, 2013

Freedman & Stulberg on Conflicts in Care for Obstetric Complications in Catholic Hospitals

Lori R. Freedman (University of California, San Fransisco) & Debra B. Stulberg (The University of Chicago Medical Center) have published Conflicts in Care for Obstetric Complications in Catholic Hospitals in AJOB Primary Research.  Here is the abstract:

A recent national survey revealed that over half of obstetrician-gynecologists working in Catholic hospitals have conflicts with religious policies, but the survey did not elucidate the nature of the conflicts. Our qualitative study examines the nature of physician conflicts with religious policies governing obstetrician-gynecologist (ob-gyn) care. Results related to restrictions on the management of obstetric complications are reported here. Methods: In-depth interviews lasting about one hour were conducted with obstetrician-gynecologists throughout the United States. Questions focused on physicians’ general satisfaction with their hospital work settings and specific experiences with religious doctrine-based ob-gyn policies in the various hospitals where they have worked. Results: Conflicts reported here include cases in which Catholic hospital religious policy (Ethical and Religious Directives for Catholic Health Care Services) impacted physicians’ abilities to offer treatment to women experiencing certain obstetric emergencies, such as pregnancy-related health problems, molar pregnancy, miscarriage, or previable premature rupture of membranes (PPROM), because hospital authorities perceived treatment as equivalent to a prohibited abortion. Physicians were contractually obligated to follow doctrine-based policies while practicing in these Catholic hospitals. Conclusions: For some physicians, their hospital's prohibition on abortion initially seemed congruent with their own principles, but when applied to cases in which patients were already losing a desired pregnancy and/or the patient's health was at risk, some physicians found the institutional restrictions on care to be unacceptable.

H/t: Linda Hutjens

November 19, 2013 in Pregnancy & Childbirth, Religion and Reproductive Rights, Scholarship and Research | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 12, 2013

Seventh Circuit Ruling on Contraception Mandate Deepens Circuit Split

The National Law Journal: Ruling Against Contraception Mandate Deepens Circuit Split, by Sheri Qualters:

A federal appellate ruling barring enforcement of the Affordable Care Act’s law's mandate that employer-provided health insurance cover contraception and related services has deepened the appellate split over that issue.

A divided panel of the U.S. Court of Appeals for the Seventh Circuit ruled on Nov. 8 that Religious Freedom Restoration Act of 1993 claims against the mandate were “very likely to succeed.” . . .

Last week’s ruling put the appellate tally at 3-2 in favor of plaintiffs opposed to the mandate. The Tenth Circuit held that a company could be a "person" exercising religion in this context and the D.C. Circuit similarly sided with owners of a company. . . .

November 12, 2013 in Contraception, In the Courts, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Sunday, November 10, 2013

Seventh Circuit Decision Temporarily Blocks Enforcement of Contraception Mandate, Broadly Construing Rights of Both For-Profit Companies and Their Owners

SCOTUS blog: Broad bar to birth-control mandates, by Lyle Denniston:

In the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law, a divided Seventh Circuit Court panel decided on Friday that two profit-making companies and their Roman Catholic owners are likely to win their constitutional challenges.  The decision temporarily blocking the mandate is here: sixty-four pages in the majority ruling, ninety pages in the dissent. . . .

See also: 

SCOTUS blog: Birth-control mandate: Which case to review?, by Lyle Denniston:

With lawyers in different cases arguing that theirs is the best one for the Supreme Court to use in deciding the legality of the birth-control mandate in the new federal health care law, the Court on Monday indicated that it will examine all four pending cases together later this month.  The Court’s electronic docket said the four will be considered on November 26.  If any are granted then or soon afterward, the Court probably would hear and decide them in the current Term. . . .

November 10, 2013 in Contraception, In the Courts, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)