There’s been quite a bit of discussion recently about the Obama Administration’s manner of implementing provisions of the Affordable Care Act by requiring that employer-funded healthcare plans include contraception. By now, every Reader here should be familiar with the objection: employers owned or controlled by the Roman Catholic Church and other religious entities object to the use of contraception on religious grounds, and they want an exemption to this provision of the ACA. The Administration has signalled that it is willing to allow these employers to not directly fund this, by way of instead having insurers provide the contraception, but this is obviously a tissue of cover which those religious employers see through and does not assuage their concerns.
Seems to me, though, that before we treat this as a cultural issue, we need to look at it as a legal one. If it turns out that the law, or the interpretation and implementation of that law, violates the Constitution, we need not consider further whether we think it is a good idea, a reasonable idea, or even a defensible one. Also, if we can see that the law does constitute a restriction on religion, that will educate a discussion about a purported “war on religion” advanced by the Obama Administration.
I don’t believe there is a “war on religion” underway, but at the same time, I have a strong constitutional concern about this law, so this particular issue is not strong evidence for my first thesis. More after the jump…
Here, religious employers have an objection to a particular rule and the question is whether the rule is enforceable against that objection. This, Ladies and Gentlemen, is what we call a “Constitutional challenge,” in this case based on the Free Exercise Clause. The Free Exercise Clause of the First Amendment reads as follows: “Congress shall make no law respecting an Establishment of religion, or prohibiting the free exercise thereof” (emphasis added).
The test for determining whether this provision of the Constitution has been violated has been the subject of some judicial and legislative wrangling over the last generation and is not exactly clear as applied to a state government. But we can be clear that at least as to the Federal government, is functionally the same now as it was 1963. Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).* That test, confirmed in statute, was originally described in the case of Sherbert v. Verner, 374 U.S. 398 (1963), and has two two-part prongs. Note, though, that this is the result of legislative action, which I’ll address in a moment.
Under the Sherbert test, the challenger must meet an initial burden of proving two facts: first, whether the plaintiff challenging the Federal law has a claim implicating a sincerly-held religious belief, and second, that a governmental action imposes a “substantial burden” on the exercise of that belief. If the plaintiff cannot make that showing, the plaintiff loses and the governmental practice is valid.
Upon making that proof, the plaintiff presumptively wins, and the burden then shifts to the government to justify its action by proving two additional things. First, the government must prove that it is acting in furtherance of a “compelling governmental interest,” and second, that its actions are narrowly-tailored to realize that interest in the fashion that is least restrictive on religious freedom possible. If the government can meet both tests, it has redeemed the law, and it prevails. Otherwise, the plaintiff wins the constitutional challenge.
Under the Sherbert test, I see very little problem with the challengers being able to meet their burden. There should be little doubt that the RCC has a sincere religious objection to the use of contraception. I need not normatively agree with that objection to acknowledge its sincerity, nor should anyone else. The question on this side of the test would be whether being required to pay for contraception in an employee health care plan, whether directly or indirectly through a private insurer, imposes a burden on that belief.
And of course it does. I’m an atheist and I object to my money being taken from me at the government’s behest and its then being used to pay for things that promote religion. For instance, this entity raises a big Establishment Clause problem for me no matter how noble and beneficial its activities are. (Note that the Supreme Court chose to duck the issue rather than address it on its merits, Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007)). It’s tax dollars being spent to subsidize religious activities. So I am similarly sensitive, on behalf of my religious counterparts, of their money being used to pay for things to which they have specific religious objections. It does no good to use the two-step method proposed by the Administration to filter the funding through a private insurance company, because at the end of the day, it’s still the government telling the RCC to use its money to buy The Pill.
Think of it this way — could Congress compel the RCC to pay for an abortion? Never mind that it would never do such a thing, the question is could it? And the answer to that should be in the negative, because to the RCC, abortion is murder and no reasonable observer could doubt the truth and sincerity of that statement. The RCC holds that abortion and contraception are both serious moral matters implicating human life.
The burden then shifts to the government to justify itself. What “compelling governmental interest” is advanced by requiring employers to provide The Pill to its employees in its health insurance plans?
I can think of scads of legitimate governmental interests that this practice might meet, if we were dealing with something to which we could properly apply the rational basis test. But it’s not — freedom of religion is a fundamental, enumerated, individual Constitutional right, which means we need to use a strict scrutiny standard as articulated in Sherbert. Providing good, comprehensive health care to all Americans is not a matter of national survival. It is not something against which the very fundament of the Republic, of our culture, of national security, must be balanced.
Health care is a good, but not a compelling one. Indeed, there are very substantial arguments that health care is not the business of the Federal government at all, and that it does not even survive a rational basis test when compared with Congress’ enumerated powers. I happen to disagree with that argument, but we need not dig into that matter here. Suffice to say that if that argument were ultimately to prevail, and even Medicare were to be repealed in full, the rule of law and orderly society in the United States would not break down.
This is also why I am largely unconcerned with whether Sherbert v. Verner is fully viable law after Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Even if it isn’t, the First Amendment is still in effect and the First Amendment still demands application of strict scrutiny against the use of governmental power when that power implicates a fundamental right like religious belief. So I recognize a legal argument that maybe, by passing the ACA, Congress carved out (perhaps unintentionally) an exception to the Religious Freedom Restoration Act of 1993, which legislatively reinstituted the Sherbert test after the Smith case, and even if Gonzales v. O Centro Espírita Beneficente União do Vegetal did not make clear that Sherbert is the appropriate framework under RFRA for at least Federal-level Free Exercise claims, we’d still be in the world of needing to find both a compelling interest and narrow tailoring.
The pay-for-it-through-third-party-insurance option offered recently by the Administration looks aimed more at the fourth factual issue, narrow tailoring, than it is at identifying a compelling governmental interest. I can see that this proposal might make achieving the objective of providing contraception as part of a health care plan easier to implement for a religious institution that objects to contraception. I don’t think it gets there because an indirect compulsion to pay for something objectionable is still a compulsion to pay for something objectionable, but again, I don’t need to reach that issue.
The absence of a compelling governmental interest in a contraception mandate renders this portion of the Affordable Care Act, at least as implemented in this instance, an unconstitutional violation of the Free Exercise Clause. The principled thing for the Administration to do is set up a process by which religious institutions can apply for and reasonably obtain exemptions from being required to comply with this portion of the Act.
* This happens to be among my favorite case names in all of Supreme Court history.
Tod Kelly 
Katherine 
Will Truman 
Kyle Cupp 
spivak 
Jaybird 
Pierre Corneille
{ 78 comments… read them below or add one }
Didn’t the EEOC rule in 2000 that employers, including religious institutions, who offered prescription drugs but didn’t include birth control a violation of Title 7 of the Civil Rights Act? Federal courts have held up that decision, how would this be any different?
I’m not aware of that ruling or courts upholding it. Doesn’t mean it doesn’t exist — I didn’t research for it is all. Do you have a citation or a case name?
I’m specifically thinking of Erickson v. Bartell Drug Co. , whereby the court ruled that employers cannot exclude contraception coverage if they offer health insurance that contains comprehensive prescription drug coverage. From the ruling: “Title VII does not require employers to offer any particular type or category of benefit. However, when an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes.” Anyway, they found this to be applicable for employers with 15 or more employees. It was also the threat of legal action, based on the EEOC ruling, that resulted in DePaul University allowing contraception coverage in it’s health insurance plans. This kind of thing dovetails with my understanding that faith-based employers can discriminate on the basis of religion, but not necessarily on the basis of gender.
I’m not sure that the RCC stance on birth control is as unassailable as you suggest, given the large number of US Catholics that report using birth control and the near-total lack of sanctions from the church for doing so.
I’m also in complete disagreement about promotion of a functioning health care system being a compelling good. Your Medicare analogy is apt. It would take a seriously radical court to conclude the federal government has no compelling interest there.
Catholic
Happy with Two Kids
Raised Catholic
Parents were happy with two kids
Though it raises a question: What percentage of a religious group has to hold a particular faith based tennant before it is decided that the “group” does? Do they need to have just the elders? 66.7% of members? If one Cardinal decides that Catholics shouldn’t eat meat EVER does that mean that all Catholic hospitals can only offer meatless menus?
I perceive a difference (as it appears you do) between the doctrines of the RCC and the day-to-day practices of the typical Catholic. That most Catholics disregard this doctrine does not render the institution’s belief in the doctrine insincere.
I’m also not going to debate the concept that healthcare is important. But I don’t perceive it as vital to the survival of the country. We had a nation without any form of national health care until 1965. We still only have half a loaf. If Medicare were repealed tomorrow and replaced with nothing, there would be profound negative consequences, but we would not dissolve into civil war nor render ourselves vulnerable to invasion by Canada or China.
I obviously couldn’t back this up with facts, but I disagree with your last sentence. There’s a reason the New Deal got its start when it did, and there’s a reason that every single advanced country has a welfare state of some form or another. Past a certain point of wealth, not having one becomes simply intolerable.
I don’t like the idea that a plaintiff has to prove a belief to be sincere, because it allows the courts to de facto decide what constitute legitimate and illegitimate religious beliefs. If I insist that my belief is sincere, what ground does any government have to say otherwise?
As a practical matter, in nearly every substantial Free Exercise case I’ve ever been aware of, the government concedes the sincerity of belief issue at the outset; I’m only aware of the government disputing a plaintiff’s sincerity of belief in prisoner rights cases where the claim is something along the lines of “My religion says I can only eat creamy peanut butter and you’re serving me the crunchy kind.”
Thanks, Burt. With this in mind, what argument is put forth to restrict Rastas from using weed?
Is this actually true, though?
Sister Carol Keehan of the Catholic Health Association (probably the most relevant organization vis this issue) says she’s “very pleased” with the revised ruling. (see: http://abcnews.go.com/blogs/politics/2012/02/both-catholic-health-assn-and-planned-parenthood-say-theyre-pleased-with-contraception-rule-announcement/ )
This is something of a quibble, but moving forward…
I’m not so convinced as you are about the second portion of the Sherbert test being met. In order to do so, you need to be able to actually raise the issue that not offering employer provided health insurance would be an unnecessary burden on the belief, not whether or not requiring health insurance to meet certain standards is a burden on the belief.
That is to say, you’re already too far along if you assume that the church affiliated organization providing health insurance is a necessity at all. Given that the ratio of employer provided insurance is in fact going down, in addition to the relatively mild assessments that are included for employers who have more than 50 full time employees who make less than 400% of the federal poverty level according to PPACA, I don’t think this is necessarily true at all.
Could you make the case that Catholic religious organizations that might fall under this penalty be unduly penalized for following religious belief based decisions? Yes.
Is it likely to be such a substantial burden to meet the test? Unlikely.
Under the original ruling, the Church affiliated organization would have to 1. stop providing health insurance to full time employees as a benefit, 2. pay all of them less than 400% of Federal Poverty Level in terms of full time compensation. This is where the repeal of the Free Choice Vouchers section of the law becomes problematic, because prior to repeal, IIRC an employer could actually get an exemption to the requirement to provide insurance by providing an equivalent amount of between 8-9% of monthly income as a support voucher for purchasing of health insurance on the exchanges.
In general I’m not sure this is all enough to count as an enormous burden. But perhaps I’m wrong.
But isn’t it the case under PPACA that at some point, an employer the size of a hospital will be required to offer its employees health care?
This, by the way, strikes me as the best argument offered against the OP in these comments.
As far as I’m aware there’s no actual requirement that an employer provide health insurance coverage, so long as they’re willing to continue paying the large employer assessment (which would work out to about $2,000 per employee over the 30th employee eligible for a premium credit in the healthcare exchange). And IIRC even this is avoidable by providing a high deductible/HSA.
The question on this side of the test would be whether being required to pay for contraception in an employee health care plan, whether directly or indirectly through a private insurer, imposes a burden on that belief.
And of course it does.”
Does it, though? After all, insurance is a form of employee compensation. The hospitals and universities in question here aren’t paying for anything here, any more than they’re paying for the mortgages of their employees when their employees use their paychecks to make payments. Employees are free not to use their insurance to get contraceptives, but the employers aren’t paying for it–the employees are using part of their rightfully-earned compensation to acquire it.
This has been my view so far. Thank you for bringing it up.
Well, it’s more like the employer is being told to give each employee, in lieu of the equivalent in wages, a pack of vouchers that can be redeemed for free birth control pills. And note that even the observant Catholic employees who oppose the use of birth control have to pay for them in this way (or at least the female employees of child-bearing age, depending on how the organization spreads the costs).
Doesn’t cash count as a voucher that can be redeemed for birth control pills? If Georgetown fired somebody for using birth control, that would be seen as invasive and unpopular, even if it’s constitutional (and I don’t know if it is or not–Burt?).
Consider three possibilities:
1: employer must deduct $200 from each female employee’s salary and give her the equivalent supply of birth control instead;
2: employer must deduct $200 from each female employee’s salary and give her the equivalent supply of vouchers redeemable only for birth control.
3: employer can leave the $200 as cash compensation and has no control over how it is spent.
(note $200 was a wild guess, actual amount not important to argument)
I see more of a distinction between #3 and the other two than I do between #1 and #2.
But I do think that under this (reasonable) interpretation, it’s the Catholic *employees* that should be upset, not the employers – they’re being forced to buy birth control.
That would be true if the health insurance ONLY covered birth control…
But that’s not true.
But health insurance isn’t only used for birth control–it covers hospital stays, other Rxs, whatever. Birth control is one choice from a wide menu of uses, just the same as if it were cash.
Insurers price plans based on coverage. If the plan offers full coverage for birth control, the price of the plan will go up accordingly. That delta is what my $200 figure above was.
If i’ve missed something and it’s the insurers who have to eat the cost somehow, then you’re right, this wouldn’t be an issue.
Yeah with the new rules the insurers have to eat the cost of contraceptives. (They accepted this because contraception coverage generally helps lower their costs in the long run)
Ok, i saw that but assumed that the insurers would recoup that cost in the plans they sell to these institutions, even if the plan itself didn’t technically have that coverage. If that’s not allowed and the price tag to the institution doesn’t include that cost then this shouldn’t be a problem.
Insurers recoup the cost simply by providing the coverage. Birth control is cheaper than pregnancy care.
Well, that came up in another thread, and i think it’s a bit more complicated than that — you’d have to determine how different levels of coverage affect usage among the target population (which, bear in mind, largely will not include low-income folks, since they’re less likely to be in a job that includes health care). To what extent is price preventing people from using birth control, to what extent is birth control usage simplying delaying pregnancy rather than preventing it, how much would incidence of pregnancy go down given the increase in coverage, how much of the savings would the particular insurer expect to capture, etc. It’s part of the field of medical economics, and health insurers have entire departments working on this stuff.
This is what the administration is saying, but before believing it, I’d like to hear it either from the insurance companies or from employers that have tried to negotiate rates with and without contraception coverage. If true, the latter should be able to say “Yes, there was no cost difference.”
And if this is true, then it’s a godsend. In fact, it should be available to any employer that wants to do it. Not just the RCC, but Catholic Bob’s Fabrication Plant With Over Fifty Employees.
I don’t think there’s a difference between insurance and cash, though. Imagine if a Catholic hospital paid its employees in “Anything but contraceptibucks” (ABCs)–they’re just like regular dollars except that they electronically alert the Pope if you try to use them to buy condoms etc (bear with me here). If a Catholic hospital paid its employees using this scrip, it would have to raise wages to get people to work there (conversely, if it suddenly introduced them, people would definitely take it as a wage cut). But only the contraceptive-using employees would be harmed, so everyone else would get a pay bump at no cost.
Is the church therefore subsidizing contraception by not paying its employees in ABCs? I’d argue not. Compensation is compensation, and to allow an employer to put any restrictions on it whatsoever is just straight paternalism. Once you get paid–be it in dollars or insurance–it’s yours. The employer isn’t responsible for what you do with it.
Why just female? I ask honestly. Doesn’t the RCC have problems with vasectomies as well? Are they part of this discussion?
AFAIK vasectomy coverage isn’t part of the new regs – dunno how catholic institutions have handled that coverage…
Nor I. I wouldn’t be surprised if they refused coverage for it, though; that would be consistent with the doctrine that sexual congress should be allowed to bear fruit without artificial interference, consistent with God’s benevolent plan for each of us and His injunction that we be fruitful and multiply.
I personally consider such reasoning to be a steaming load of hooey. But (not addressed at either of you, Friday or KenB) that does not mean I get a right to question the sincerity of a Catholic who feels differently.
FWIW, I’m not Catholic, just interested in religious freedom issues and inclined to be argumentative.
Vasectomy coverage, in general, is spotty. It’s considered “elective” by some. As far as I know, it is not including in HHS provisions.
There are at least a couple of arguments on why vasectomies are different from contraception. With a vasectomy, it’s one-and-done. It’s not an ongoing expense. While there are practical arguments that ongoing expenses are precisely what shouldn’t be covered by insurance (which should focus on one-offs), there is another argument that because it’s ongoing, for it to work, you have to keep doing it, and therefore you have to cover not just the cost of a single month of pills, but the overall, which makes it expensive, and thus more subject to needing to be insured.
The other issue is that there are medical reasons for hormonal birth control that go beyond the contraception capabilities. That is not true for vasectomies.
I’m not aware of any instance of any Catholic hosptial (or university, or other institution) that has actually fired or even disciplined an employee for personally using contraception.
Were they to do so, this would not implicate the Constitution. It might implicate nondiscrimination laws as a form of sex discrimination, depending on the kind of position held by that former employee.
But again, I’m not aware of any such instance actually happening.
OK. But, if I may be so bold, I’d like to see you address why you think insurance is different from cash compensation. Why should the church get so exercised about how its employees use compensation, be it insurance or cash? Presumably allowing employees to buy condoms at CVS using their own money would not constitute an undue burden. So why should allowing them to buy the pill using their own insurance?
There are ways to enforce this now–for instance, Georgetown could require its female employees to take a drug test to prove they’re not on the pill. They don’t, and that’s because they don’t see what their employees do with their own cash as any of their business. So why does it suddenly become their business when the compensation is delivered in a different form?
Or, alternatively, would you support Georgetown if they actually went down this road? It seems to me that would run into issues of privacy and gender equity that are at least as important as the religious concerns here.
The issue is who holds title to the money. The bishops argue that money spent on insurance is their money, not their employee’s; they can control premium money to a significant degree even after paying premiums to an insurer so long as they are the owners of the insurance policy. Cash compensation, on the other hand, becomes the employee’s money upon tender.
If, as Nob suggests upthread, the employer discontinues coverage completely and instead pays in to the employer assessment fund, that could solve the problem by transferring title to the money from the employer to the government. The big issue I’d see then would be whether the cost difference of the employer assessment and providing insurance would be so large as to be an unreasonable burden on the employer.
Has it been the historical assumption that your employer held title to your insurance? Wouldn’t that have pretty serious implications for medical privacy?
Yes, and yes.
Well, you learn something every day (or at least I do). Thanks, Burt!
To be clear, if the ACA ends up undermining this presumption, then in my mind that will be an unqualified good.
Burt,
You make a compelling case. Here is something talked about here and there, that you might be better able to shed some light on: What is the difference between The RCC being forced to fund contraception and Catholic Bob being forced to pay taxes that fund contraception? It seems to me that in both cases, you’re expecting someone to pay for something that is against their religion. Both use an intermediary (the insurance company on one side, the government on the other).
But more to the point, though, what about Catholic Bob’s Car Wash having to kick in for contraception? How is that not a violation of his rights? In your closing, you talk about waivers for religious organizations. What about companies owned by religious men? It’s been explained that it’s just different when it comes to churches, but the metric you’re using, Sherbert v. Verner, was about an individual who belonged to a church, and not a church itself.
And lastly, what of Nob’s point that the church (or Catholic Bob’s Car Wash) doesn’t actually have to supply contraception, but only have to supply it if they want to provide tax-incentivized health care benefits? They are free to stop providing benefits* and put their employees on the exchanges.
* – and I believe to provide contraceptionless benefits, though they lose the tax advantages for providing benefits at all.
I’d also like to see the car wash question answered. There’s definitely a difference between a church, a business, and a church-operated business like a university that doesn’t employ or serve Catholics exclusively.
Boy, are all your arguments strawmen. First off, the bob car wash does not pay or provide birth control by the law. The insurance company does and it takes zero money for that purpose from bob so bob does not fund birth control by the law. You are wrong on all points.
By the way, taxes are used to kill people all the time – see Iraq and the Afgan issue. So where is your outrage for that?
Last I checked the so-called moral church and its bishops have no issue with such mass murder. Besides, birth control kills no humans – a cell is not a human at all and only extremist say such nonsense. So, tax money (and I don’t see any being used to fund birth control, by the way – please find the Government agency that provides birth control or who gets this tax money to provide birth control) is used all the time for immoral reasons – fight that battle and I’ll believe you are arguing for morals, not just listening to fake news (called fox news by some) to attack President Obama. The issue of birth control use in this country and the church’s attempt to end it for all was settled long ago in this country.
Mr. Brown,
You’re so hopped up to argue, that you’re arguing with the wrong person. And if you’d read around a bit, you’d see that I am largely defending the HHS ruling. You confuse questions you don’t like (and are therefore stupid) with having taken a policy position you disagree with.
If Bob owns a carwash and has enough employees that he is required, under ACA, to offer insurance, and that insurance must, by the terms of the ACA, supply contraception, wouldn’t Bob then be required to fund contraception?
Taxes are general obligations used to fund the actions of governments. Mandates are specific obligations imposed by governments on private actors.
Bob’s Catholic Car Wash is a tougher case, but if Catholic Bob is going to provide health insurance to his employees, I’d not grant him the waiver the same way I’d grant a waiver to St. Mary’s Catholic Hospital. St. Mary’s Catholic Hospital is owned and operated by the RCC itself, in fulfillment of its religious mandate. Bob’s Catholic Car Wash is a for-profit business that happens to be run by a devout person. The governmental interference with the practice of religion is substantially less direct in the case of Bob’s Catholic Car Wash.
Taxes are general obligations used to fund the actions of governments. Mandates are specific obligations imposed by governments on private actors.
So it would appear that the contraception “compromise,” as fig-leafy as it appears, would provide a sufficient veil of separation between the church-owned enterprise and its employee. I already know that you disagree, but why?
Also, here’s a twist on the scenario, and I’m interested about how others would weigh in: the Mormon church owns a majority of the Marrott hotel chain. Would they have a similar claim to religious exemption as would a Cacholic hospital? Why (or why not)? They are both secular in their aims; does the fact that health care is part of a Christian “mission” make the legal obligation that much tighter?
How, precisely, does a Jewish or athiest employee of a Catholic-run hospital need to suffer the impact of the religious policies of the secular organization from which he got a job?
I disagree because the owner of an insurance policy still has substantial control over what happens to premium dollars even after that money is spent. For instance, an owner can elect to cancel coverage and get a refund of unused premium. Large policy owners, moreover, have significance bargaining strength about what is or is not covered.
Isn’t it funny how people with penises conclude birth control is no big deal? When it comes to cocks like BL, women are and always will be cunts.
After you dump your sperm, it’s the woman’s problem, right?
Isn’t it funny how people assert moral superiority without reading what the person actually said?
He didn’t conclude that birth control is no big deal (or that there’s no compelling interest to provide birth control). He concluded that there is no compelling interest for the government to provide *health care* at all.
Agree with this. Disagree with this. But address what is being said rather than disqualifying his perspective due to the nature of his anatomy.
Not a compelling interest? Isn’t it funny how almost everyone who thinks this also has a penis?
If you do not care for the opinion of people with penises, or if having a penis renders one’s opinion invalid (unless, presumably, they agree with you), you are reading the wrong blog.
I told Maribou the comment that I wrote in response to this and she told me “don’t leave that comment”. She then told me the comment that she would have made and it was, like, EVEN BETTER and we both giggled evilly and she said that I, under NO circumstances, could even *HINT* at her comment.
But we had a couple of good ones. Trust me.
Dude, why you gotta tease us like that?
Did either of your censored comments have anything to do with John Wayne Bobbitt?
I’ve rewritten this comment four times. This is the only one that I feel safe posting.
You’re going to have to give the reveal in Vegas.
I’m only allowed to give my own.
Thus was it written. Thus will it be.
Full disclosure is just a few $9.00 martinis away.
KenB is correct. Dates are May 25 to May 28 in Las Vegas. Call (800) 635-7711 and advise that you are registering for “The League of Ordinary Gentlemen.” or use “SGGCM2.” The group rate is guaranteed through April 25, 2012.
I know that you think you’re making a cogent point here.
You’re not.
This comment is a good example of an ad hominem (my opinion is worthless because I am male), a non sequitur (who cares what the Constitution says, this MAN is somehow opposed to health care), and a straw man (at no point did I say birth control is “no big deal,” I said that nationalized health care was not a “compelling governmental interest.”)
FTR, Taylor, I favor contraception. I favor health care reform, at least as a generalized matter (still have doubts about the PPACA specifically). I like the idea of employers providing health insurance to their employees. All other things being equal, I would interpret and enforce the rule more or less as the Obama Administration has done and is actually doing. But all other things are not equal, as I wrote in the OP.
Sorry, but you have gone so far over the deep end that you have lost all sight of reality. When you say “requiring employers to provide The Pill to its employees in its health insurance plans?” what does that mean? That employee’s MUST use birth control? Of course not. Nor is the new law forcing any person to provide it – last I check most all major heath providers (read insurance companies) are corporations that by law, must maximize profits for share holders.
Birth control has been proven to save far more money than they cost so 1) you must then consider corporations as real people with morals based solely based on Roman Catholic beliefs and/or 2) all corporate law needs to be re-written so that corporations can put specific religious beliefs ahead of profits which, if not done, violates corporate policy and the US legal system relating to corporations.
Fact: the law in no way forces anyone to use birth control nor force anyone (as in person) to provide it. Only that it is covered if and only if the person wants it. Insurance companies do not have morals so this in no way violates corperate freedom – just the opposite. It protects corporate profits which, by law, must be a CEO’s #1 job. Hence, your arguments both legal and non-legal are ridiculous and not relevant.
This is not a question of one religious freedom but an attempt by leaders of one religion to control all people who do not agree with their medevil and very deadly point of view.
By your arguments, Muslim’s and some Jews must be provided single sex access to all medical facilities – otherwise, the State is compromising their religious beliefs. While true by your logic, absurd by any current legal president; may I point out that similar arguments justified Jim Crow laws?
Any one can refuse to use birth control but no one has the legal right to deny it to those who want it. That is a moral necessity and we left the dark ages a rather long time ago but the church hasn’t. Need I remind you that this church refused to allow an under age child, who was raped by her own father, an abortion? Under your legal definition, the child (under 12) would be forced to carry the child to term, and very possible be injured and could die to protect some hospital’s CEO from having moral issues conflict with said church. That is your idea of religious freedom?
Much of what you say here, and in your comment below, addresses the desirability of contraception and thus constitutes good policy arguments for the inclusion of contraception in health care coverage. As I wrote in response to another comment above above, I agree that it is good policy to include contraception. But this misses the point. My argument does not reach policy considerations, it addresses the Constitution and case law interpreting it.
By way of analogy, it might be good policy to forcibly take billions of dollars from the bank and investment accounts of hedge fund managers, and distribute that money to people living under the poverty line. But we can’t do that, either, no matter how good a policy it might be, because that would constitute a “taking” of private property which requires compensation to the former owner.
Similarly, moral failings of the RCC as an institution, and moral failings of particular Catholics both within the clergy and the laity, also miss the point no matter how grave those moral failings are (and there are grave moral failings out there indeed). The point is that the law requires a religious institution to act contrary to its sincere moral beliefs, not that you or I disagree with the moral correctness of those beliefs. For better or for worse, religion enjoys a special Constitutional status in this nation, by way of our most fundamental law.
IIRC, Catholic hosptials and other similar sorts of operations do not punish their employees for using contraception if they choose to do so on their own. They are not forbidding their employees from using contraception — they are saying “We don’t want to pay for it if they do.” That’s a material difference.
Also, IIRC, Jews and Muslims — and Christians and atheists and everyone else — already do get sex-segregated hospital rooms in nearly every case, whether in religious hospitals, secular hospitals, or government hospitals.
Could the church then deduct $200 from the salary of their employees who use birth control, on the theory that the money would be going towards birth control? Would the sherbert test exempt them from wage laws in the same way it exempts them from the new health-care laws?
What’s the difference in that case?
By the way, last I checked, giving birth does have a non-zero chance to kill the mother; also, some woman will die if they attempt to give birth. How does a medieval idea get used to force these woman to either 1) Possibly die or 2) Avoid all sex just so men called bishops who have gone to extreme lengths to protected proven pedophile priests and even transferred them to assault other children in other churchs (a small minority of all priests) can have their immoral… I mean morals imposed on all woman?
Again your legal arguments ONLY accounts for situations where great harm is not done by the the religion that is seeking the given exception. Last I checked the old testament demanded stoning for any adulterer. Then your legal doctrine would permit this? Not a chance. Birth control IS a life or death issue and no church, CEO, or other person has the right to restrict access to those who need it. The law is valid and your counter example is nonsense when the health, safety and lives will be compromised to allow companies to not carry birth control based policies. That does and must trump silly, medieval nonsense.
I find it interesting that no one has pointed out what half a day’s reflection caused me to consider the biggest flaw in my own argument: why do I assume that the RCC has any rights under the Free Exercise Clause at all? After all, the Constitution recognizes and protects the rights of individual people, not of religious institutions or corporations. The RCC is not an individual person.
To get around this, we’d need to find a hospital administrator at a Catholic hospital who had a personal religious objection to having to actively participate in the funding of contraception. And at that point, we’re at least a large step closer to the Bob’s Catholic Car Wash scenario raised by Will Truman above.
I’ve been chewing on this and I think it’s because there is a very real sense in that Catholicism *IS* a group activity (it’s in the name!).
There are two senses to religious activity and they get used pretty interchangably.
There is the personal 1-on-1 relationship with the Divine (however you want to define that) sort of thing and there is the Organized Religion (that may have nothing to do with the other definition).
(Now that I think about it, there’s more than a little overlap with the definitions of “marriage” that get thrown around in the gay marriage debate.)
The Bob’s Catholic Car Wash scenario is irrelevant, because unless Bob has an absolutely enormous car wash, he doesn’t fall under the large employer requirement in PPACA. Nor for that matter would the infamous “Taco Bell” case that the counsel for the Bishops used. In both cases, having less than 50 full time employees, these franchises have no obligation to provide health insurance, and thus wouldn’t be required to provide contraception coverage at all.
A better name for this might be the Dominoes pizza scenario, which IIRC was founded by an extremely conservative Catholic who ended up giving millions to establish a pro-life university in Florida. One more reason to avoid them, besides their terrible pizza.
Fair enough. Is mandating contraception coverage different for Domino’s, which is a for-profit company controlled by a devout lay Catholic, than it is for Georgetown Hospital, which is a public charity controlled by Catholic clerics? I think that both distinguishing facets of the contrasting scenarios — for-profit versus charitable, as well as control by laity versus clergy — are at least worthy of contemplation.
Isn’t the threshold 50 employees? There are quite a lot of car washes that have more than 50 employees, if we include the minimum-wage guys doing the bulk of the work. I don’t know if there is an income threshold for those 50 employees, though.
It’s 50 full time employees, not 50 employees period.
Catholic Bob’s Car Wash is an example. It could easily be the case that it’s a chain with a number of car washes that are centrally owned.
Taco Bells may be individually franchised, but it’s often the case that someone who owns one Taco Bell owns a lot of Taco Bells, or some Taco Bells, some Burger Kings, and a host of other restaurants. Half the McDonalds near where I grew up were owned by a single entity.
IIRC McDonalds actually got a very specific exemption to the requirement under the argument of the franchise system.
If true, that opens up a different set of questions. A lot of defenders of the mandate are saying “Why should a Jewish employee have to suffer (go without covered contraception) because they work for a Catholic organization?”
“Why should an employee have to suffer because they work for a franchise?”
I think the flip side of this is (assuming that contraceptive coverage has a nonzero cost and that the employer is functionally passing the cost on to the employee one way or the other), why should a Catholic employee who objects to contraceptive use be forced to pay for that coverage just because she doesn’t work for a Catholic employer?
There are, in my view, arguments that the RCC does have a Freedom of Religion protection (though I don’t think this violates it) because it’s administrators hold the position they do. In the same way that Catholic Bob does. Where I do have difficulty, though, is saying that the RCC gets protection that Bob doesn’t. The court case cited here doesn’t particularly help with that because it involves a religious individual rather than a religious entity. I could see an argument that “once you enter the for-profit game, the rules change.”
Maybe there’s something to that, but nobody is really making that distinction. And telling someone that they can’t start a business (or that they have to keep their business small) does seem like a pretty real imposition. It also brings up the interesting Marriott example mentioned above. I don’t believe that Marriott is majority owned by the church, but it is run by Mormons. And industriousness is a religious tenet, and arguably, a religious expression, to the LDS Church. (On the other hand, the LDS Church doesn’t have a ban on contraception, so it’s moot, but it’s an interesting avenue of inquiry.)
Here is a contrary opinion, suggesting that Smith provides the better and operative rule and, in any event, upholding the health law under the test of Sherbert and Yoder may be easier than one might think. http://www.aafcp.org/cplm/files/12.pdf