Reproductive Rights Prof Blog

India Strikes Down Colonial-Era Ban on Gay Sex

The New York Times (Sept. 6, 2018): India Strikes Down Colonial-Era Ban on Gay Sex, by Jeffrey Gettleman, Kai Schultz, and Suhasini Raj:

India's Supreme Court unanimously struck down a ban on consensual gay sex, a remnant of the country's colonial past and one of the oldest bans of its kind. The Court called the law "irrational, indefensible and manifestly arbitrary." 

The Court's decision came after weeks of deliberation, years of legal arguments, and decades of activism. Human rights advocates in India and around the world celebrated as India joined the growing list of countries granting full rights to gay-identifying people. Similar laws have been overturned in the United States, Canada, England, and Nepal, among others. 

In 2009, a court in New Delhi had ruled that the law could not be applied to consensual sex, but religious resistance to this decision followed by an appeal led to the restoration of the full law in 2013. The court deferred at that point to the Parliament and claimed the law only applied to a "minuscule fraction of the country."

In 2016, activists rallied five brave plaintiffs identifying as gay and lesbian Indians who alleged their rights to equality and liberty were violated under the law (Section 377). Eventually, more than two dozen additional Indians joined the case while it was pending before the Supreme Court.

The September 2018 decision struck down the prohibition against gay sex, and the Court also made illegal all discrimination based on sexuality, extending "all constitutional protections under Indian law" to gay people.

The law was written in the mid-19th century and applied to "unnatural sexual acts." The law, which criminalized people who engaged in "intercourse against the order of nature," remains on the books to apply to cases of bestiality, for example, but now no longer can be used against consensual sex. “'History owes an apology to members of the community for the delay in ensuring their rights,' Justice Indu Malhotra said."

Menaka Guruswamy was one of the lead attorneys representing the petitioners. This decision is a "huge win" she said. The lawyers' arguments centered on the legal issues but also embraced pleas to the Justices to recognize the humanity of those who have been affected by Section 377 for decades.

The law is notably a vestige of British colonialism. Hinduism, the dominant religion in India, is generally permissive of same-sex relationships, but levels of tolerance were eviscerated under British rule. The British leaders implemented Section 377, which imposed a life sentence on those in violation. While the law has been greatly limited, India remains a conservative country in many ways, and fundamentalist groups across religions--Hindu, Muslim, and Christian--protested the decision.

In recent years, though, many more Indians have come out, identifying publicly as gay, lesbian, and transgender. Now that these lifestyles are no longer criminalized, Indian activists hope that many more Indians will come out and be embraced by their country. 

HHS Refuses to Release Documents on the New Office of Civil Rights (OCR)

The Department of Health and Human Services (HHS) announced the opening of a new division in January of this year: The Office of Civil Rights (OCR). The OCR's primary mandate is to enforce refusal of care laws. 

Refusal of care laws essentially empower medical providers to deny care to patients if they disagree with the ethics of a particular procedure based on their religious grounds. The purported goal of these laws is to protect a healthcare provider from being forced into providing care that "violates their conscience." 

This is an Executive-ordered decision that does not require legislative or judicial approval to go into effect or to implement its new rules and regulations.

Critics of refusal of care laws express concern that these requirements do not simply "protect" health care providers consciences, but can instead seriously harm patients. These laws may lead to a pharmacist refusing to fill a birth control prescription, a doctor refusing hormone therapy to a transgender patient, limitations placed on services to LGBTQ persons and partners, and of course abortion services may also become more limited.

HHS does not require providers who refuse treatment to refer patients to other providers or provide any information at all on other providers.

The OCR further has authority to initiate compliance reviews of any organization receiving federal funding to ensure conformity to the new rules. 

Earlier this month, the Center for Reproductive Rights (CRR) and the National Women's Law Center (NWLC) filed a lawsuit against HHS for refusing to release records pertaining to the creation of the OCR. The organizations initially requested these records via a FOIA request in January 2018. The CRR and NWLC seek knowledge of why the new division was needed, how the OCR operates, allocates funding, and may be influenced by outside groups.

"We’re filing this lawsuit to force the Trump-Pence administration to justify why it’s using resources to fund discrimination, rather than to protect patients," said Gretchen Borchelt, NWLC Vice President for Reproductive Rights and Health. 

HHS's new Office of Civil Rights follows additional moves by the Trump administration to limit equitable access to reproductive health care, including promoting the "Global Gag Rule," its domestic counterpart, and establishing regulations aimed at severely limiting funding to Title X programs. 

Supreme Court Backs Anti-Abortion Pregnancy Centers in Free Speech Case

New York Times (Jun. 26, 2018): Supreme Court Backs Anti-Abortion Pregnancy Centers in Free Speech Case, by Adam Liptak: 

Justice Thomas wrote for the five-justice, conservative majority who decided Tuesday that California's "crisis pregnancy centers" cannot be forced to provide information on abortion services in the state. 

The case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, centered on a California law that requires pregnancy centers whose aim is to dissuade pregnant people from abortions to provide information on the availability of abortions in California.

The state requires the centers to post notices that free or low-cost abortion, contraception and prenatal care are available to low-income women through public programs, and to provide the phone number for more information.

The centers argued that the law violated their right to free speech by forcing them to convey messages at odds with their beliefs. The law’s defenders said the notices combat incomplete or misleading information provided by the clinics.

The state legislature enacted the law after finding that hundreds of the pregnancy centers used "intentionally deceptive advertising and counseling" to confuse or intimidate women from making informed decisions about their health care. The law also required that unlicensed clinics disclose that they are unlicensed. 

Justice Thomas wrote that the requirements for the notices regarding abortion availability were too burdensome and infringed on the clinics' rights under the First Amendment. The ruling reverses a unanimous decision from a three-judge panel of the United States Court of Appeals for the Ninth Circuit, which had upheld the law.

Justice Breyer penned a dissent, joined by Ginsburg, Sotomayor, and Kagan, citing the contradiction between the majority's decision here and a Court decision in 1992 that upheld a Pennsylvania law that required abortion-performing doctors to inform their patients about other options, like adoption. 

Is Your Hospital Catholic? Many Women Don’t Know.

Rewire.News (June 6, 2018): Is Your Hospital Catholic? Many Women Don’t Know, by Amy Littlefield: 

About one in six women in the United States name a Catholic facility as their go-to hospital for reproductive health care.

However, more than a third of these women are unaware that their hospital is Catholic, according to a survey revealing an “information gap” about Catholic hospitals, where religious rules dictate access to contraception, sterilization, and abortion services.

Among women who listed a Catholic hospital as their primary facility for reproductive care, only 63 percent knew that the hospital was Catholic, researchers found. The study, published in the journal Contraception, did not address whether respondents knew how Catholic hospitals restrict care.

Women with annual incomes under $25,000 are less likely to realize their hospital is Catholic than women who make more than $100,000 a year, the researchers found, underscoring how these barriers disproportionately affect marginalized patients. A January report found women of color are more likely to give birth in Catholic hospitals and thus bear the brunt of these religious restrictions.

Patients seeking care in Catholic facilities have been turned away while bleeding and made to wait until they sicken to receive miscarriage treatment. Cesarean section patients in Catholic hospitals often can’t have their tubes tied at the same time they give birth, requiring a second surgery elsewhere. Transgender patients have had gender-affirming surgeries canceled on religious grounds.

The researchers called on hospitals to better advertise their Catholic affiliations. “Efforts are needed to increase hospital transparency and patient awareness of the implications that arise when health care is restricted by religion,” they wrote.

Women overwhelmingly want to be informed about religious restrictions: eighty-one percent say it’s important to know these barriers when they decide where to go for care.

John Oliver takes aim at crisis pregnancy centers and anti-abortion activists 'controlling women's behavior'

The Guardian (Apr. 9, 2018):  John Oliver takes aim at anti-abortion activists 'controlling women's behavior', by Guardian staff

John Oliver examined crisis pregnancy centers (CPCs) designed to prevent abortions on this past Sunday's episode of HBO's Last Week Tonight, criticizing their “disingenuous and predatory” tactics and explaining how their "primary purpose is to talk women out of terminating a pregnancy.”

There are 2,752 CPCs  in the United States, compared with 1,671 abortion providers. Many CPCs use the word "choice" in their names and give out advice that is medically inaccurate. They often pretend to be abortion clinics on the exterior to fool women to enter. “Normally, the strategy ‘pretend you’re an abortion clinic’ is not actually a great marketing stunt, although I am pretty sure that Radio Shack would have tried it if they’d thought of it,” Oliver said.

Oliver also discussed how CPCs discourage the use of contraception. There are claims from within CPCs that condoms are ineffective at preventing pregnancy. “For all the lengths that CPCs will go to to prevent abortions, many of them don’t do a key thing that would help that and that’s give women access to birth control,” he said.  “The fact is if you want fewer abortions, you should love birth control."

Oliver said that the real goal of CPCs is “controlling women’s sexual behavior”, as many of them are affiliated with religious figures and organizations.

Watch the segment below:

Facebook is Ignoring Anti-Abortion Fake News

The New York Times (Nov. 10, 2017): Facebook is Ignoring Anti-Abortion Fake News, by Rossalyn Warren

As Facebook addresses the role of "fake news" on its platform, largely in relation to the 2016 election and Russian political propaganda, another potentially more difficult concern arises. The spread of false reproductive rights and health news is widespread and often harder for Facebook to spot (and manage).

Facebook’s current initiatives to crack down on fake news can, theoretically, be applicable to misinformation on other issues. However, there are several human and technical barriers that prevent misinformation about reproductive rights from being identified, checked and removed at the same — already slow — rate as other misleading stories.

Identifying a fake news sources is not always straightforward. The social media giant says it often targets "spoof" sites that mimic legitimate news sources. But misleading anti-abortion sites can be hazier to identify. They generally publish original pieces, but often alongside inaccurate facts or with poor sourcing, which "helps blur the line between what’s considered a news blog and 'fake news.'"

Facebook aims to limit fake news by making it more difficult for these sources to buy ads or generate spam. "Most false news is financially motivated," Facebook says. This is not often the case with anti-abortion advocates, though, who are overwhelmingly driven by strong religious or political beliefs. The goal isn't profit but persuasion. 

Many are concerned that misinformation regarding reproductive rights and abortion in particular may detrimentally affect current political movements. Ireland plans to hold a referendum next year regarding whether to lessen the country's strict abortion regulations. Pro-choice advocates are worried that the rapid spread of abortion-related misinformation on Facebook (like a purported causal link between abortion and breast cancer) may affect the vote. 

Facebook has yet, though, to directly address concerns over this type of scientific misinformation in the same way they have begun to address fake news about last year's election. 

Supreme court agrees to hear antiabortion challenge to California disclosure law for pregnancy centers

Los Angeles Times (Nov. 13, 2017): Supreme court agrees to hear antiabortion challenge to California disclosure law for pregnancy centers, by David G. Savage:

The Supreme Court has granted certiorari to hear NIFLA vs. Becerra, in which an anti-abortion group challenges a California law that requires crisis pregnancy centers to notify patients that the state offers contraception and abortion services. 

The case centers on the Reproductive FACT Act, which requires pregnancy centers to disclose whether they have a medical license and whether medical professionals are available. The law also requires centers to post a notice in the waiting room that reads: "California has public programs that provide immediate free or low-cost access to comprehensive family planning services, including all FDA-approved methods of contraception, pre-natal care and abortion."

California lawmakers passed the disclosure law two years ago after concluding as many as 200 pregnancy centers in the state sometimes used “intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women” about their options for medical care.

The National Institute of Family and Life Advocates (NIFLA) represents 110 pregnancy centers in California that all claim the disclosure provision violates their free speech as "compelled speech." Such a disclosure, they claim, conflicts with their faith-based goal of encouraging childbirth and preventing abortion. 

The Californian pregnancy centers initially lost their case under three federal district judges. On appeal, the 9th Circuit Court upheld the lower court's decision. Last month, however, a judge in Riverside County ruled that the law violated the free-speech provisions of California's own state Constitution. 

California's Attorney General Xavier Becerra stands by the disclosure provision and its intent to provide women accurate information about their health care options.

It takes five justices for a majority opinion, and many expect the Court's decision to turn on the vote of Justice Kennedy. 

Trump administration narrows Affordable Care Act’s contraception mandate

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. 

FOIA Lawsuit seeks information about denial of reproductive health care in Catholic hospitals

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.

Congressional Efforts to Prevent Use of RFRA to Discriminate

ACLU Blog (May 18, 2016): The Religious Refusals Fight Comes to Washington, by Ian S. Thompson:

When the Supreme Court remanded Zubik v. Burwell last week, it avoided answering questions about the limits of the Religious Freedom Restoration Act.  The petitioners in Burwell argued that a generally applicable law (the Affordable Care Act's requirement that employee health plans include contraceptive coverage) should not apply to them and that the accommodation given to them (that they fill out a sheet indicating their religious objection, allowing them to avoid paying for contraceptive coverage, but triggering coverage by their insurer) substantially burdened their free exercise of religion. The Supreme Court's failure to issue a decision may embolden arguments that religion can justify opting out of non-discrimation laws and other laws of general application.

And now Congress is getting into the act.  Last month, an Oklahoma Congressman added an amendment to the the defense authorization bill that would allow religiously affiliated government contractors and grantees to discriminate in hiring.  According to the ACLU, the bill would allow these grantees to claim a right to: 

• Fire a woman who uses birth control or who is pregnant and unmarried.
• Fire a man who marries his same-sex partner.
• Refuse to interview anyone, however qualified, based on their religious beliefs, effectively adding language to job applications that says: “Jews, Sikhs, Catholics, Mormons need not apply.

So far efforts to strip the amendment from the defense bill have been unsuccessful.  But efforts also are underway to curb the use of religion as an excuse to discriminate.  Reps. Bobby Scott (D-VA) and Joe Kennedy III (D-Mass) have introduced the Do No Harm Act to amend RFRA to ensure that it can't be used as a justification for discrimination or to otherwise harm others.

Rise of Religious Hospitals Threatens Women's Health

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.  

Female Genital Cutting in Indonesia

New York Times (Feb. 5, 2016): Female Genital Cutting: Not Just "an African Problem," by Pam Belluck and Joe Cochrane:

New documentation shows that female genital cutting is widespread in Indonesia, one of the most populous countries in Asia and the world's most populous Muslim-majority nation.  It is estimated that 60 million women and girls have been cut, using a technique that is less invasive than is common in Africa.  Current regulations require the cutting to be performed by a medical professional who may do no more than scratch the clitoral hood without injuring the clitoris.  Most cutting is performed on infants.  Unicef has been working in Indonesia to end the practice. 

The practice of female genital cutting persists, despite reductions in its incidence worldwide.  The reductions are not keeping up with population growth with the result that the number of girls and woman being cut is expected to rise over the next 15 years.  Cultural beliefs about the practice vary, including that without it women cannot truly be women and cannot marry.   

 

Does Hobby Lobby Open Door To Renewed Conscience-Based Claims for Exemptions from Abortion Restrictions?

MSNBC: Satanists Aren't the Only Ones Following Hobby Lobby's Lead, by Irin Carmon:

On Monday, the Satanic Temple drew headlines for declaring that, in the wake of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, it was “asserting a religious exemption from the burden of state mandated ‘informational’ abortion materials for those who share their deeply held beliefs.”

In other words, they wanted a conscience clause from laws intended to dissuade women from having abortions by mandating an ultrasound or that a doctor impart biased or medically-inaccurate information about abortion. . . .

But the Satanists are hardly the first to use religion to make an affirmative argument for reproductive rights. For decades, pro-choice activists have been trying to make a religious claim for their view – and generally failing. . . .

But now that the Supreme Court has opened the door to more robust religious exemptions under RFRA, there might be a new opportunity for supporters of abortion rights to try their luck. . . .

Obama's Anti-Discrimination Executive Order Protecting LGBT Employees Will Not Exempt Religious Groups

The New York Times:  Obama Set to Bar Federal Contractors From Anti-Gay Discrimination, by Julie Hirschfeld Davis:

President Obama plans to sign an executive order on Monday that protects gay, lesbian, bisexual and transgender employees from discrimination by companies that do federal government work, fulfilling a promise to a crucial Democratic constituency, White House officials said on Friday. But the directive will not exempt religious groups, as many of them had sought. . . .

Republicans Block Senate Bill Aimed at Countering Effects of Hobby Lobby Decision

The Hill: Dem birth control bill stalls, by Ramsey Cox:

Senate Republicans on Wednesday blocked legislation that would require companies to provide birth control coverage in their employee healthcare plans.

The bill failed to advance in a 56-43 vote, with Republican Sens. Lisa Murkowski (Alaska), Susan Collins (Maine) and Mark Kirk (Ill.) voting with Democrats. . . .

Legal Scholars Urge Obama To Resist Calls for Overly Broad Religious Exemption in Anti-Discrimination Executive Order

Columbia Law School press release:  Public Rights/Private Conscience Project Spearheads New Effort:

Legal Scholars Urge President Obama to Resist Calls for Overly Broad Religious Exemption in Proposed Executive Order

New York, July 14, 2014—More than 50 legal scholars today strongly urged President Obama to resist calls for an overly broad religious exemption in a proposed executive order prohibiting sexual orientation and/or gender identity discrimination by federal contractors. 

The effort is being spearheaded by Columbia Law School’s Center for Gender and Sexuality Law, as part of its recently launched Public Rights/Private Conscience Project. The new initiative is one of the first independent law school projects aimed at re-conceptualizing religious exemptions and the law, particularly as the exemptions impact reproductive and sexual liberty and equality rights.

 

In a letter signed by 54 legal scholars from around the country, Columbia Law School Professor Katherine Franke, Public Rights/Private Conscience Project Director Kara Loewentheil, and Brooklyn Law School Professor Nelson Tebbe argue that the broad exemption urged by some religious leaders and several law professors is not required by the First Amendment's Free Exercise Clause, the Religious Freedom Restoration Act (RFRA), or accommodations of religious liberty in other federal non-discrimination laws, including Title VII. 

 

"The Supreme Court's recent opinion in Hobby Lobby and order in Wheaton College do not compel in any way the inclusion of religious exemptions language in an executive order prohibiting discrimination against LGBT employees of federal contractors," said Franke. "Including an exemption for religious discrimination in an executive order securing work-place rights for LGBT people sends a message that the federal government has a more ambivalent commitment to sexual orientation and gender-identity based discrimination as compared with other forms of workplace equality.”

 

Loewentheil said the letter "reflects an emerging consensus among legal scholars that a proper balance between religious liberty and equal rights can be struck without creating carve-outs for religion in new laws protecting LGBT or reproductive rights."

 

"We are delighted that many prominent scholars in the legal academy signed this letter," Loewentheil said. "The views of these scholars provide responsible counsel to the White House as it considers the wording of an important new executive order securing LGBT and gender identity non-discrimination rules for employers who receive public funding." 

 

Read the letter.

Court Issues Order on Contraception Mandate that Reinforces Female Justices' Concerns About Hobby Lobby Ruling's Scope

The New York Times:  Birth Control Order Deepens Divide Among Justices, by Adam Liptak:

In a decision that drew an unusually fierce dissent from the three female justices, the Supreme Court sided Thursday with religiously affiliated nonprofit groups in a clash between religious freedom and women’s rights.

The decision temporarily exempts a Christian college from part of the regulations that provide contraception coverage under the Affordable Care Act. . . .

___________________________________

The reason this order  is so frustrating is that Justice Alito's opinion in Hobby Lobby emphasized that its ruling was justified in large measure because the accommodation already provided to certain non-profits could simply be extended to closely held for-profits.  In relying on the existing accommodation, the Court implied that the accommodation was constitutionally acceptable.  Indeed, the Court dismissed Justice Ginsburg's concerns about the opinion's scope, referring to the existing accommodation for non-profits and saying, "[O]ur holding is very specific."  Justice Kennedy in concurrence even felt obliged to issue a separate reassurance: "[I]t should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent."  Justice Kennedy pointed out that "there is an existing, recognized, workable, and already-implemented framework to provide coverage" and "[t]hat accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs" (emphasis added).  The majority itself assured that the goverment's accommodation "does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion."

There was a clue, however, in the majority's opinion, that left Justice Ginsburg and others concerned as to whether the Court was sincere in suggesting it would ultimately find the existing accommodation adequate.  The Court noted, "We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims," referring to Little Sisters of the Poor, a case in which the Court  issued a previous order addressing the accommodation as applied to a non-profit entity.  This caveat, buried in an opinion full of reassurances about the decision's narrow scope, coupled with today's order supports Justice Ginsburg's concern that the true implications of Hobby Lobby are broad and as yet unclear.

-CEB

Supreme Court Rules in Favor of Hobby Lobby

Justice Alito wrote the opinion. There are qualifications to the Court's ruling. It appears to be limited to closely held corporations and to contraception, for example. SCOTUSblog is live blogging the decision here. The opinion is available here.  I will be participating in a Twitter chat hosted by UltraViolet to answer questions about the opinion.

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. . . .

 

Balkinization:  Do The Rights of Employees Count?: The Supreme Court Hears Oral Argument in Hobby Lobby, by David Gans:

 

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? . . .

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. . . .