Reproductive Rights Prof Blog

Editor: Caitlin E. Borgmann
CUNY School of Law

A Member of the Law Professor Blogs Network

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)

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

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)

Wednesday, February 5, 2014

Montana Diocese Fires Unwed Catholic School Teacher Because of her Pregnancy

The Missoulian: Montana diocese defends firing of unwed pregnant Catholic school teacher:

The Diocese of Helena is defending its decision to fire an unwed Butte Central teacher because she is pregnant.

Shaela Evenson “made a willful decision to violate the terms of her contract,” which requires her to follow Catholic teachings in both her personal and professional life, Superintendent Patrick Haggarty said Tuesday. “It’s a sensitive issue, and it’s unfortunate all around.” . . .

February 5, 2014 in Pregnancy & Childbirth, Religion and Reproductive Rights, State and Local News | 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)

Monday, January 27, 2014

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)

Friday, January 24, 2014

Supreme Court Extends Order Temporarily Exempting Nuns From Complying with Contraceptive Rule

The New York Times: Justices Extend Order Blocking Contraception Mandate for Nuns, by Adam Liptak:

The Supreme Court on Friday extended a temporary order from Justice Sonia Sotomayor barring the Obama administration from enforcing a part of the Affordable Care Act against an order of nuns.

The health law requires most employers to provide insurance coverage for contraception. The nuns of the Little Sisters of the Poor said the requirement is offensive to their religious beliefs.

An accommodation allowing them to opt out of the requirement — by issuing a certification to an insurance company to offer the coverage independently — also made them complicit in immoral conduct, the nuns said. . . .

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

A Philosopher Examines Whether Pope Francis's Position on Abortion Comports with Reason

The New York Times - The Stone blog: Should Pope Francis Rethink Abortion?, by Gary Gutting:

Pope Francis has raised expectations of a turn away from the dogmatic intransigence that has long cast a pall over the religious life of many Roman Catholics. His question “Who am I to judge?” suggested a new attitude toward homosexuality, and he is apparently willing to consider allowing the use of contraceptives to prevent sexually transmitted diseases. But his position on what has come to be the hierarchy’s signature issue — abortion — seems unyielding. “Reason alone is sufficient to recognize the inviolable value of each single human life,” he declared in his recent apostolic exhortation, “Evangelii Gaudium,” adding: “Precisely because this involves the internal consistency of our message about the value of the human person, the church cannot be expected to change her position on this question.”

I want to explore the possibility, however, that the pope might be open to significant revision of the absolute ban on abortion by asking what happens if we take seriously his claim that “reason alone is sufficient” to adjudicate this issue. . . .

January 24, 2014 in Abortion, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 15, 2014

Exemptions from Contraceptive Rule Threaten Rather than Protect Religious Freedom

The Washington Post (op-ed): Exemptions from the ‘contraception mandate’ threaten religious liberty, by Frederick Mark Gedicks:

Can my employer make me pay the cost of practicing his religion? In the coming months, the U.S. Supreme Court will decide two cases involving just this issue. The cases are about the Affordable Care Act’s “contraception mandate” — the law’s requirement that employer health plans cover Food and Drug Administration-approved contraceptives without out-of-pocket expense, including co-payments, co-insurance or deductibles. The employers in these two cases are among scores of profit-making businesses that are claiming a religious right under a federal statute to be excused from this requirement because the use of contraceptives violates their owners’ religious beliefs. . . .

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

Sunday, January 12, 2014

Lyle Denniston on Little Sisters of the Poor

SCOTUS blog: Analysis: The Little Sisters case and EBSA Form 700, by Lyle Denniston:

Analysis

It seems like a bureaucratic thing to do, but gaining an understanding of what it means to sign government form EBSA 700 is the key to a historic religious controversy now before the Supreme Court in the Affordable Care Act case of Little Sisters of the Poor Home for the Aged v. Sebelius (docket 13A691).

Signing that form, the federal government argues, is a simple way for a religious organization like the Little Sisters to avoid what they regard as a sin:  providing  contraceptives and other pregnancy-related services to their female employees.  But signing, the Little Sisters counter, would be the very act of violating their faith by clearing the way for such services for those employees. . . . 

January 12, 2014 in Contraception, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

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)