Tuesday, December 3, 2013
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. . . .
Saturday, November 30, 2013
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. . . .
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. . . .
Friday, November 29, 2013
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. . . .
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.
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. . . .
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. . . .
Friday, November 22, 2013
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. . . .
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.
Tuesday, November 19, 2013
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
Tuesday, November 12, 2013
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. . . .
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. . . .
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. . . .
Sunday, November 3, 2013
Slate: Dear President Obama, This Is Why Judges Matter, by Emily Bazelon & Dahlia Lithwick:
Two Bush appointees deliver body blows to reproductive rights—and demonstrate the power of the bench.
It’s been a day of body blows for reproductive rights. On Thursday night, the U.S. Court of Appeals for the 5th Circuit reversed a lower court’s decision to temporarily block a provision of the omnibus Texas abortion law that requires doctors performing abortions to have admitting privileges at a local hospital. . . . On Friday, morning, it was the turn of another extremely conservative woman chosen for the bench by Bush, Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit. . . .
Friday, November 1, 2013
DC Circuit Denies Injunction of Federal Contraceptive Mandate to For-Profit Corporations, but Grants it to the Companies' Individual Owners
SCOTUS Blog: A split ruling on birth-control mandate, by Lyle Dennison:
Taking a split approach, the D.C. Circuit ruled on Friday that profit-making corporations cannot make a religious challenge to the new health care law’s mandate that workers get birth-control and related medical coverage; however, if the firm is owned by only a few individuals, they can challenge it to defend their own religious objections, and they may well win. The two major parts of the ruling split the three judges in differing ways.
The Supreme Court already has three cases awaiting its attention on the Affordable Care Act’s contraception coverage mandate — with differing outcomes in lower courts — and the somewhat unusual approach taken by the D.C. Circuit on Friday may simply add an additional impetus for the Court to take on the issue in the current Term. . . .
This passage of the court's opinion seems question-begging:
If the companies have no claim to enforce—and as nonreligious corporations, they cannot engage in religious exercise—we are left with the obvious conclusion: the right belongs to the Gilardis, existing independently of any right of the Freshway companies.
The court assumes that there must be a "claim to enforce," but why must that be so? Why isn't there simply no right, given that the Gilardis chose to incorporate, and it is the corporation that is subject to the mandate? For more on this, see Caroline Corbin's essay on this issue.
Sunday, October 27, 2013
Rolling Stone: Why the Right Wing Is Targeting Birth Control Again, by Erika L. Sanchez:
What does birth control have to do with the congressional budget? Not much – unless you're a House Republican. In their latest effort to thwart Obamacare during the recent budget negotiations, several right-wing legislators attempted to tack a so-called "conscience clause" onto the law. The idea, which dates back several years, is to give employers who cite religious objections a way to block their employees from getting contraception covered by their health insurance.
Under the Affordable Care Act, preventative services, which include birth control, must be covered by health plans with no copayment, coinsurance or deductible. Even so, some top GOP leaders, most notably Rep. Paul Ryan (R-Wisconsin), are still demanding restrictions on contraception. As a result, many women's rights advocates are now on high alert. . . .
Thursday, October 24, 2013
RH Reality Check: Sixth Circuit Issues Strong Opinion Against For-Profit Religious Rights in Eden Foods Case, by Jessica Mason Pieklo:
. . .On Thursday, the Sixth Circuit Court of Appeals . . . in Eden Foods v. Sebelius . . . held the individual plaintiffs lacked standing to challenge the mandate and that the for-profit, secular corporate plaintiff was not a “person” under the Religious Freedom Restoration Act. Following its earlier decision in Autocam, the court affirmed the denial of a preliminary injunction that would have blocked the Obama administration from enforcing the mandate against Eden Foods and sent the case back to the lower court to be dismissed for a lack of jurisdiction. . . .
The opinion is available here.
Wednesday, October 9, 2013
San Jose Mercury News: Santa Clara University president triggers abortion uproar, by Tracy Seipel & Josh Richman:
A decision by Santa Clara University's president to drop health insurance coverage of elective abortions for the Catholic university's faculty and staff has triggered a serious rift at the school. . . .
The thorny issue echoes a nationwide debate at Catholic universities over their institutional identities and ability to consider the convictions of those who do not identify with -- or who disagree with -- certain principles the Catholic tradition holds as central.
The uproar at SCU comes on the heels of a contentious vote this week by trustees of Loyola Marymount University in Los Angeles, another Jesuit school that decided not to provide coverage for elective abortions. . . .
The Los Angeles Times: Loyola Marymount drops health coverage for 'elective' abortions, by Larry Gordon:
Employees will instead be offered a separate plan to cover the procedures. The decision is seen as a compromise between abortion foes and a more liberal group.
Amid a debate about the role of Catholic colleges in a secular society, Loyola Marymount University this week decided to drop staff health insurance coverage for "elective" abortions and instead offer employees a separate, unsubsidized plan to cover those procedures.
The move was seen on campus as a compromise between traditionalist alumni and faculty — who think the university should have nothing to do with abortion — and a more liberal group who contend LMU should not impose religious doctrine on the large number of non-Catholics it enrolls and employs. . . .
The New York Times: Abortion Vote Exposes Rift at a Catholic University, by Ian Lovett:
LOS ANGELES — Not three weeks have passed since Pope Francis said the church had grown “obsessed” with abortion, declaring, “We have to find a new balance.” But on the campus of Loyola Marymount University, overlooking this city’s west side, a fight over abortion now threatens to rip the school asunder. . . .
Tuesday, September 24, 2013
The Daily News: Nancy Pelosi should be denied Holy Communion over abortion rights stance: Vatican official, by Leslie Larson:
Raymond Cardinal Leo Burke says the California Democrat has 'obstinately' separated her religious and political lives, which he calls a 'grave error.'
A Vatican official has come out in support of denying communion to House Minority Leader Nancy Pelosi for her support of abortion rights.
Raymond Cardinal Leo Burke, Prefect of the Supreme Tribunal of the Apostolic Signatura in Rome — the Vatican's Supreme Court — slammed the California Democrat for "obstinately" persisting in grave sin by supporting the policy, even "after repeated admonitions." . . .
Monday, September 23, 2013
Caroline Mala Corbin (University Miami School of Law) has posted Corporate Religious Liberty on SSRN. Here is the abstract:
Do for-profit corporations have a right to religious liberty? This question is front and center in dozens of cases challenging the Obama administration’s “contraception mandate.” Whether for-profit corporations are entitled to religious exemptions is a question of first impression, and one the Supreme Court is likely to answer in the next few years. Most scholars writing on this issue argue, “yes,” they 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 “no,” for-profit corporations do not and should not have religious liberty rights. 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. Citizens United changes nothing in religious liberty jurisprudence, as its protection for corporate speech is based on the rights of audiences and not the rights of corporate speakers.
As a normative matter, for-profit corporations should not have free exercise rights. There is no principled basis for extending a purely personal right to profit-making corporations, and for-profit corporations cannot be equated to churches or other voluntary religious associations. Finally, granting religious exemptions to corporations risks trampling on the religious liberty of individual employees.
Friday, September 20, 2013
Pope Francis offered an olive branch of sorts to the doctrine-minded, conservative wing of the Catholic Church on Friday as he denounced abortions as a symptom of today's "throw-away culture" and encouraged Catholic doctors to refuse to perform them.
Francis issued a strong anti-abortion message and cited Vatican teaching on the need to defend the unborn during an audience with Catholic gynecologists. . . .