dotCommonweal

A blog by the magazine's editors and contributors

.

Justice Kennedy's Logic Puzzle

Everyone knows the power granted by Justice Kennedy’s middle position on the Supreme Court. Indeed Paul Clement, the advocate for the plaintiffs in Sebelius v. Hobby Lobby, seemed to direct most of his arguments toward the concerns he imagines Kennedy to have about the case.

But even in Clement's most hopeful fantasies, he could not have imagined the gift that Kennedy would present him during questioning of the Solicitor General. Kennedy introduced the idea that, by the logic of the government’s case -- in some future scenario, at the calamitous bottom of a slippery slope -- for-profit corporations could be forced to “pay for abortions.”

When following the live blogs, I thought surely this must have been reported incorrectly, but here it is from the transcript:

JUSTICE KENNEDY: Under your view, a profit corporation could be forced – in principle, there are some statutes on the books now which would prevent it, but – could be forced in principle to pay for abortions.

Verrilli’s first response is the obvious and correct one: the hypothetical scenario is already illegal and not relevant to this case.

GENERAL VERRILLI: No, I think, as you said, the law now – the law now is to the contrary.

Now maybe Justice Kennedy’s modus operandi is to present false slippery slope arguments and then see how advocates squirm. During oral arguments about the Affordable Care Act, the court famously discussed if the government could mandate that citizens buy broccoli. It was a memorable line, and perhaps useful in some way. But it was a true hypothetical, since Congress has not enacted a statute against forcing citizens to pay for broccoli.

In yesterday’s case, though, the format was:
- “If the government compels A, what is to stop it in theory from forcing B?”
- “But sir, the Congress has already outlawed government from forcing B.”

In other words, a hypothetical “slippery slope” situation was presented for which a law already exists to define precisely the stopping point that makes the slope not slippery. It’s no wonder Verrilli was confused.

Verrilli eventually admitted than in some theoretical land, yes, there is nothing in principle to stop the scenario about which Kennedy asked. He hastened to repeat, though, “There is no law like that on the books. In fact, the law is the opposite.” Even despite Verrilli’s accurate protestations, the exchange was – rhetorically at least – an embarrassing moment for the government’s case.

Then Chief Justice Roberts pressed further, sensing the opening created by Kennedy’s question. “Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that’s what we had before us.”

As I understand it, though, the court was not tasked with answering the question of whether the plaintiffs are correct that certain pharmaceuticals classed as contraceptives are actually abortifacients. The court was not tasked to define whether pregnancy begins at fertilization or implantation, nor the mechanisms by which pharmaceuticals work. In the same way, the court was not tasked in U.S. v. Lee (1982) to define the precise way in which Social Security is a burden on the conscience of the Old Order Amish or in Employment Division v. Smith whether peyote really is a hallucinogenic necessary for anyone’s free exercise of religion.

Verrilli responded by citing the plaintiffs’ “sincere” belief in this “difficult case,” while making clear that state and federal law reflect line-drawing on the side of the government’s position. Furthermore, he returned to the implications of ruling on the accuracy of their religious beliefs about the matter: “the implications for entanglement and making the judgments when you move past that group, the administratability problems, and the problems of inviting the kinds of claims that are predictably going to impose harms on third parties.”

After this response, questioning moved on to Justice Alito’s “kosher or halal butcher vs. humane treatment of animals” analogy, one which has the great benefit of being legally relevant and possible to imagine happening (unlike Kennedy’s hypothetical).

But for Verrilli, it was too late. By raising the hypothetical of paying for abortions, Justice Kennedy introduced both a scenario that is already illegal and an issue of embryology and theology that the court is not tasked to decide (and indeed cannot decide). Kennedy's hypothetical also just so happens to coincide with exactly the scenario that the plaintiffs want people to fear – even though it is already illegal. It was no surprise, then, that Clement’s first point in his rebuttal centered on abortion.

The phrase ‘paying for abortions’ did one final disservice to our public discourse about the Affordable Care Act. Employers are not paying for specific health care services. They are required to make available health insurance providers that provide access to certain services, which employees may or may not use. The degrees of cooperation here are both morally and legally relevant, and to conflate the distance between health care premium support and the procedure itself obscures our understanding of insurance and the law in question.

Now the court may decide, in the end, that any degree of cooperation with what a ‘person’ (in this case, a corporation) views as religiously forbidden is too much cooperation for the government to coerce. They would have Thomas v. Review Board as a potential precedent there. The Tenth District used Thomas to explore whether the “substantial burden” or “substantial pressure” on free exercise exhibited in Thomas would also apply to Hobby Lobby.

The Tenth District made the analogy to the irrelevance of “line-drawing” in Thomas: “Once the plaintiff drew this line [between making the steel to be used in tanks and making the weapons themselves], it did not matter whether the line was “acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”

But regarding the Hobby Lobby case, the court might draw its own line about degrees of cooperation, splitting off Thomas (in which the worker would physically be manufacturing material for weapons of war) from other scenarios that require, for example, pacifists and conscientious objectors to pay overall taxes, some of which go toward the waging of war. Is paying health insurance premium support more like paying taxes or is it more like manufacturing steel?  And there are, of course, several other types of rulings possible.

But however the court rules, Justice Kennedy’s logic puzzle about abortion did not aid the process of getting there.

Topics: 

Comments

Commenting Guidelines

Granted - and your point about no one arguing about this:

"The phrase ‘paying for abortions’ did one final disservice to our public discourse about the Affordable Care Act. Employers are not paying for specific health care services. They are required to make available health insurance providers that provide access to certain services, which employees may or may not use. The degrees of cooperation here are both morally and legally relevant, and to conflate the distance between health care premium support and the procedure itself obscures our understanding of insurance and the law in question."

OTOH - doubt that this specific phrase will live and ocntinue in SCOTUS internal discussions.

In terms of the slippery slope - you focus on Justice Kennedy but the slippery slope was almost the very first question from one of the female justices.......using examples such as vaccinations, HIV, blood transfusions, etc.  It works both ways and one difference is that the federal government has already prevented abortion payments via legislature dating back decades.  Wonder if you are inflating one tiny question beyond what it has legs to support?

To Vermilli's credit, he accepted that Hobby Lobby's religious stance is in good faith - how often does that happen?  Thus, he gave away one line of argumentation because he will argue this without casting aspersions, questionning motivations, etc.  Will the other side do the same for the ACA and the individual mandate and the need for access to universal healthcare including birth control\ as part of the common good?

Bigger line of question, IMO, had to do with Chief Justice Roberts off hand comment reinforcing Sotomayer's comment about - it is NOT a penalty;  it is a TAX.  That is where you need to do some homework and analysis.

Predictions?

5-4 and at least three opinions

But for whom?

My tea leaves think that government case will prevail on the basis on the lack of ability to identify the religious identity (and thus freedom) of the corporation as a moral "person" despite Citizens United(lawyers would say this better!)

All misogynistic Troglodytes are still clinging by their fingernails to any crack on the rock face of the law to help them maintain the hegemony of their anti-feminine ideology over the rest of us.  

I suppose these rear-guard action(s) will be with us for some time into the future - well at least until the Roman Catholic male cabal on the right-wing of SCOTUS start to retire or die-off.  

Please O Lord, delivers us from the insufferable chauvinist Scalia!

Speaking of Scalia:  Did you notice that in Tuesday's arguments he completely reversed himself from his own opinion in the Employment Division v. Smith case (1990) that determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on use of peyote, even though the use of the drug was part of a religious ritual? 

Scalia then reasoned that although states have the power to accommodate otherwise illegal acts done  in pursuit of religious beliefs, they are not required to do so.  In other words, Scalia argues against personal religious beliefs trumping state laws - just the opposite of what he now says in the Hobby Lobby case now before the court.

Scalia is sooooooo political!  Watch him now shift his ruling to fit his own personal agenda.

Let's see what kind of pretzel Kennedy will twist himself into in order to side with either the girls or the boys on the court.

It's time for term limits for Supreme Court justices!

Thanks for a fine post. I'm especially interested in the conflation of the corporation with the owner of the corporation. Does a company automatically share the "deeply held religious beliefs" of its owner or founder? Do the religious beliefs of its employees figure into the company's "deeply held religious beliefs," or do ONLY those of the owner/founder count? (See, e.g., http://www.salon.com/2014/03/25/4_things_you_need_to_know_about_the_hobb..., which also notes the lack of corporate support for this suit.)

Also want to second your point that insurance coverage does not mean "paying for" a particular procedure. Insurance isn't a perk--it's part of an employee's compensation, no more liable to the moral strictures of the boss than is the cash that's also part of compensation.

Or can a company refuse to give its employees cash at all, given the possibility that such a fungible good can easily be turned to purposes of which the employer might disapprove? (In fact, wouldn't anybody with a lively sense of sin--say, any Calvinist corporation--refuse to pay cash on exactly those grounds? "Here you go, dear. I'll pay your rent, and here's a nice box of groceries for your week's pay. And we'll consider your request for new clothes. That skirt you asked for looked like it might show a little too much ankle..." ) 

 

 

My philosophy taxation and spending never are a unconstitutional burden on people's consciences even if the taxation and spending is done through indirect means such as mandates.

The government certainly could provide contraceptive coverage. The owners of Hobby Lobby would have to pay for (through their taxes) contraception just as much as they are now. Providing coverage to those who have private plans via a mandate doesn't change anything.

Having to do something contrary to one's religion (or not do something mandated to one's religion) is a violation of conscience.

Having to pay for something morally objectionable is an unavoidable consequence of government.

The court was not tasked to define whether pregnancy begins at fertilization or implantation

Several articles I have read recently say that the legal and m

The court was not tasked to define whether pregnancy begins at fertilization or implantation

Several articles I have read recently say that the legal and medical definition of abortion is the termination of a pregnancy that has already reached implantation. 

Verrilli’s first response is the obvious and correct one: the hypothetical scenario is already illegal and not relevant to this case.

Better than "already" is Kennedy's "currently." The Hyde amendment, which prohibits federal funding for elective abortions, is a statute that has to be passed again year after year. True, it's been passed every year since it was first enacted. But public opinion may change, and if it does, there's no reason to assume that this already controversial restriction will be continued. Many proponents of the contraception mandate also think that all insurance policies ought to include coverage for surgical abortions, since it is a legal medical procedure with a bearing on women's health. So we can't really treat Kennedy's line of questioning as fanciful. The fact that compulsory insurance coverage for abortions isn't possible now, for political reasons, doesn't mean it's irrelevant to the case at hand. Nor can we assume that the Supreme Court's decision will imply that every conscientious objection to services covered by the HHS mandate should be treated the same way. Contrary to one liberal version of the slippery slope argument, a decision that ended up allowing religious businesses owners an exemption from the contraception mandate would not necessarily entail similar exemptions for business owners who believe that, say, blood transfusions or psychotropic drugs are immoral—any more than a decision in favor of the mandate would necessarily imply that the Supreme Court would rule the same way about an abortion mandate. Still, if there are to be such distinctions, we need a legal framework for them; and that's exactly what Kennedy seems to be looking for here.

As I understand it, though, the court was not tasked with answering the question of whether the plaintiffs are correct that certain pharmaceuticals classed as contraceptives are actually abortifacients. The court was not tasked to define whether pregnancy begins at fertilization or implantation, nor the mechanisms by which pharmaceuticals work. In the same way, the court was not tasked in U.S. v. Lee (1982) to define the precise way in which Social Security is a burden on the conscience of the Old Order Amish or in Employment Division v. Smith whether peyote really is a hallucinogenic necessary for anyone’s free exercise of religion.

These last two questions both involve normative evaluations. The question of whether certain kinds of emergency contraception are abortifacients is a (disputed) question of fact. If members of a religious community were to claim that they cannot keep any chemical poisonous to humans in their homes or businesses, the Supreme Court would have no businesses adjudicating the rationale for that belief. If members of the same community were to claim—and, admittedly, this is a fanciful speculation—that bananas contain high levels of arsenic, it would not be improper for the Court to challenge this claim, or to dismiss it as the basis for a special exemption from some generally applicable law (I'll let you imagine what such a law might be).

 

Sorry, hit the button accidentally.  Starting over:

The court was not tasked to define whether pregnancy begins at fertilization or implantation

Several articles I have read recently say that the legal and medical definition of abortion is the termination of a pregnancy that has already reached implantation. This is different from the Church's view (apparently shared by the non-Catholic Hobby Lobby and Conestoga families) that preventing implantation is also abortion. 

Three cheers for Hobby Lobby for pursuing this case as a model socially responsible capitalist firm.  Which Catholic university or business school will choose one of the owners as a convocation speaker? 

They get extra credit for rejecting the Sotomayor-Kagan recommendation to just pay the tax/fine/penalty, drop health insurance for employees,  be done with it and save some money for themselves in the process.

John Hayes,

I don't think it should matter. The courts cannot get into the question of whether a religious belief is true, whether a religious belief is sincere, or whether a violation of a religious belief would be trivial or substantial. If having to buy insurance that covers legal but morally objectionable abortion is an unreasonable burden, so would having to buy insurance that covers legal but morally objectionable contraception.

Unlike the Church, Hobby Lobby and Conestoga are not opposed to contraception. They are willing to provide insurance covering most contraceptives. Their objection is to covering four out of twenty (currently) contraceptives that, in their view, cause abortions by preventing implantation. 

I think Chief Justice Roberts was exactly right in saying that this case is about abortion - but it is about abortion as defined by the Church and Hobby Lobby, etc - and apparently not abortion as defined by law and medicine. 

There are disputes as to whether all four of those contraceptives prevent implantation, but Hobby Lobby doesn't have to prove that they do. It also doesn't have to convince anyone else that preventing implantation is wrong. 

John,

The definition of pregnancy may or may not correspond to the definition of conception, which is the more important definition for the Church's teaching about abortion. We tend to assume, reasonably enough, that there can't be an abortion before there is a pregnancy, but it may be that it makes sense to define pregnancy the way medicine does and conception the way the Church does, in which case there is a gap between the two.

As I said, I don't understand why the abortion aspect should matter to the courts. If one group says that abortion is a sin as grave as murder, another group says that using contraception is a sin as grave as murder, and another group says that blood transfusions are a sin as grave as murder, I don't see how the courts should listen to the abortion group and ignore the others.

Our laws do treat abortion differently than other things, but this is a legislative choice rather than a constitutional obligation.

"Now maybe Justice Kennedy’s modus operandi is to present false slippery slope arguments and then see how advocates squirm. During oral arguments about the Affordable Care Act, the court famously discussed if the government could mandate that citizens buy broccoli. It was a memorable line, and perhaps useful in some way. But it was a true hypothetical, since Congress has not enacted a statute against forcing citizens to pay for broccoli."

To reiterate Matthew Boudway's point, I don't see why the fact that Congress having made it illegal to force companies to pay for abortions makes Kennedy's hypothetical a "false slippery slope." Legislatures are free to make legal what is illegal and vice versa any time they please. Otherwise we wouldn't have any Japanese-born citizens and couldn't drink alcohol. There is no doctrine of stare decisis for legislatures.

A lot of people seem to confuse the question of whether something is a bad law and whether something is or should be an unconstitutional law. Fixing bad laws via the courts can lead to creating precedents that mess up a lot of other areas or create a new law that is  also bad but now much more difficult to fix.

Ryan Rowekamp, Justice Kennedy's question was aimed at the government's position that a corporation can't make a religion-based claim.  That's a question of whether they can even get a hearing, not how the case ought to be decided

Essentially, Kennedy asked if Verelli would carry that so far that a for-profit corporation wouldn't be able to get a hearing even if if they were required to pay for insurance for abortions.

after a while, Verelli replied:

GENERAL VERRILLI: Well, I think that if it were for a for­profit corporation and if such a law like that were enacted, then you're right, under our theory that the for­profit corporation wouldn't have an ability to sue. But there is no law like that on the books. In fact, the law is the opposite. 

In his reply, he ignored the differing definitions of abortion and that is what Chief Justice Roberts corrected in his comment. 

 

What is the law that is already on the books that would prevent a company from being forced to pay for abortion? The only one I am aware of that might do that is RFRA, the applicability of which to this situation is precisely what is being reviewed by the court. The Hyde amendment applies only to federal funds and wouldn;t apply to requirements for private companies. Is there a law I'm not aware of here?

David,

The short answer to your question is: the Affordable Care Act. But you're right: strictly speaking, the Hyde Amendment does not apply to the ACA, and there is no parallel law that specifically prevents the government from requiring private employers to offer health insurance that includes abortion coverage. Instead, it is implicit in the provisions of the health-care reform law, which was designed to honor the principle behind the Hyde Amendment. Hence the segregation of federal subsidies for individual insurance policies from abortion coverage, and hence the requirement that every insurance exchange include a policy that doesn't cover abortion. The HHS mandate applies to all insurance policies—both employer-based policies and the individual policies available on the state exchanges. So if every exchange must include a policy that doesn't cover elective abortion, then the HHS cannot include elective abortion on its list of things every health-insurance policy must cover (the list that now includes contraceptives). The Hyde Amendment remains important as an index. The day when there aren't enough votes to renew Hyde will be the day when there are enough votes to amend the Affordable Care Act so that the government can require all health-insurance policies to cover abortion.

I was just about to type what Matt said, but he said it (as usual) more succinctly.

I should add that trends from 1960 to the present do not lead me to believe that our citizenry or our representatives will become more comfortable with abortion funding or abortion coverage mandates in the foreseeable future. I still think the hypothetical muddied the debate and invited equivocation on key terms as used by Kennedy, Roberts, Clement, and Verrilli, such that one side was talking about abortion as defined by law and the other as defined by Hobby Lobby's founder's conscience.

Thank you for adding that, Mr Peppard.  Found Mr. Boudway's point to be contrary to both the historical record to date and current and past voting patterns of US citizens.  Talk about making a hypothetical argument from left field - would suggest that the risks from the other side will happen quickly and frequently if every corporate customer can be allowed to make their case based upon the owners' religious beliefs.

What is also left out in this discussion are any concepts of catholic social justice thought or the thinking of VII's Dignitatis Humanae that places the dignity of every person and their conscience above some imagined right of a religiously inclined business owner.  As John Courtney Murray stated years ago, the implications and impact of this document have yet to be fleshed out and will have a significant impact.  (he was refering to those who hold a rigid and narrow concept of truth or even religious liberty and is most skewed by our current crop of US culture warrior bishops)

Bill deHass,

Oddly, you and I probably agree about the underlying issue of contraception. We may even agree, more or less, on the HHS contraception mandate. I do think it was ill-advised, but I don't think it's outrageous—not even from the point of view of someone who believes artificial contraception is a grave sin. Church teaching does not forbid the kind of remote material cooperation with the provision of contraceptives that the mandate requires. 

That said, I also find your description of the issues at stake to be tendentious and misleading. The conflict is not between those who believe that women have a right to decide for themselves whether they will use contraceptives and those who believe that Catholic employers ought to have the right to keep their employees from using contraceptives. The question here is whether the federal government has a good enough reason to make Catholic employers pay for health-insurance policies that cover contraception. No one is talking about forbidding anyone from using contraceptives, and you cannot violate my conscience by refusing to pay (however indirectly) for something that vioates yours.

Nor is the issue of abortion as settled as you pretend. The provisions of the Affordable Care Act that keep the government from subsidizing coverage for elective abortions had to be fought for, as did the provisions that (now) make it impossible for the HHS to mandate that all insurance policies cover abortions. Most of the people who voted for the Affordable Care Act would have been happier without those provisions, believing, as they do, not only that abortion is a fundamental right but that all women should have access to it irrespective of their income—in exactly the same way they should have access to every kind of contraceptive.

I think Kennedy's hypothetical was a necessary part of the discussion. In the end, the court is going to have to decide whether a forprofit corporation can bring a religious exercise claim. If the answer is "no", as Verelli argues, there is nothing else to decide in this case. 

The problem I see is how can you test the sincerity of a corporation's beliefs? That may lead to the outcome Roberts mentioned - allowing closely held corporations to sue on the assumption that there you can test the sincerity of the owners' beliefs as a surrogate for the corporation. 

Verelli's comment on that was:

  1. 12  And if you disagree with our position at the

  2. 13  threshold that corporations ­­ that even though you have

  3. 14  a situation, and we acknowledge you can have situations,

  4. 15  in which a tightly knit group of ­­ a small group of

  5. 16  tightly knit individuals own and operate a corporation

  6. 17  where there is appeal to that, to the argument that they

  7. 18  ought to recognize a claim of exercising religion in

  8. 19  those circumstances.

  9. 20  The problem, I would submit, is with the

  10. 21  implications of doing it, the implications for

  11. 22  entanglement and making the judgments when you move past

  12. 23  that group, the administrability problems, and the

  13. 24  problems of inviting the kinds of claims that are

  14. 25  predictably going to impose harms on third parties.

  15.  

My guess, right now, is that that is the way the court will go on the standing issue

However, I don't think that gives any clue to what they will decide about the substantive issue of whether the the government's interest in getting free contraceptives to all women justifies the burden on Hobby Lobby

 

 

Formatting problem. Everything after 15 is my comment, not part of the quote.

Thanks for this great piece. We're also following the Hobby Lobby case on our blog at http://berkleycenter.georgetown.edu/rfp/blog

Okay - but two points:

- allow me to modify your statement above.....*the question here is whether Hobby Lobby's owners have a good enough reason to make their employees pay for contraceptive coverage when the *public good* is to cover contraception.  (keep in mind, the Greens only object to four contraceptives and not the other 16 available and covered).

- their *contraception* conscience approach will not be a part of this debate but, in reality, it contradicts accepted medical and scientific studies, results, and conclusions that have been testted and found correct.

- you state - "No one is talking about forbidding anyone from using contraceptives, and you cannot violate my conscience by refusing to pay (however indirectly) for something that vioates yours."  Sorry, this may be technically correct but it avoids reality.....it is like some catholics who argue that immigration reform is not needed because American society already offers them *opportunity* and in their belief, catholic social thought is only about *opportunity* not actual rights to have certain things based upon human dignity  e.g. insurance.  In fact, by not covering contraceptives (remember, ACA makes this part of wellness covered visits (free) with low co-pays for prescriptions) the result will be that some employees will not have the *freedom* to make that decision - it will be made for them.

Finally, you say:  "Most of the people who voted for the Affordable Care Act would have been happier without those provisions, believing, as they do, not only that abortion is a fundamental right but that all women should have access to it irrespective of their income—in exactly the same way they should have access to every kind of contraceptive."  Sorry, unless you have documentation on this or can read the minds of Democrats who voted for the ACA, this is merely an unsubstantiated claim.

My guess projection is that this will be resolved via *tax* understanding - not in a broader sense.

 

I don't see how making people indirectly fund abortion would be different from making religious pacifists indirectly pay for war.

Ryan Rowekamp. The courts have determined that religious pacifists must pay income taxes, even though those taxes pay for war. 

Bill deHass,

You caught me. I didn't have any documentation at my fingertips when I wrote that last comment; I was hazarding an educated guess—or rather, a vague memory. So I looked it up, and here's what I found. The Affordable Care Act (H.R. 3490) passed the House in 2010 by a vote of 219 to 212. All of the Aye votes came from Democrats, and most of those Democrats had voted against the Stupak Amendment to the House version of the Affordable Care Act (H.R. 3962), which prohibited the federal government from paying "for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion." (The Stupak Amendment passed 240 to 194, most of the Aye votes coming from people who would go on to vote against the Affordable Care Act.) Here are the two lists; you can compare them for yourself. True, the restrictions on abortion funding in the Senate version of the bill that became law were not exactly the same as those in the Stupak Amendment, but I still think it's fair to say, as I did, that "most of the people who voted for the Affordable Care Act would have been happier without those provisions"—that is, without the provisions that keep the Affordable Care Act from using federal money to subsidize abortion coverage.

Thanks, Mr. Boudway and agree with your comparison, link, and conclusion.  My only quibble would be that this was in the context of a hard fought debate over the ACA......will hazard a guess that in another context, some (many) Democrats might have felt free to support abortion payment restrictions, limitations, etc.   Just think this issue gets emotional and inflated and that some Democrats who voted saw the total wisdom and advantages of the ACA - its support that allowed women to make these decisions in consultation with their MD; making healthplans gender neutral in terms of monthly premiums, etc.

Always amused that this whole Hobby Lobby snafu is over four contraceptives which all impact women - wonder if the same argument would happen if it included some male contraceptive prescriptions.  It never seems like this is a balanced issue.

Stanford Law Professor Michael McConnell has a thorough analysis of the HL case.

"Ultimately, the government’s problem here is that it has essentially reduced its own compelling interest to a funding question: Who should pay for the contraceptive coverage the government has decided people should have? Almost by definition, where the government’s claimed interest is merely a question of who should fund something, there will always be less restrictive alternatives, because the government can always choose to fund its own priorities"

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/27/prof-...

t's interesting that McConnell recommended that the University of Chicago Law School recruit onstitutional scholar Obama

 

 

Thank you for the link.  I'm not a lawyer, but it seems to be a good analysis, especially of the government's compelling interest arguements, and the financial burden on businesses ,even if they choose to pay the tax rather than offer the coverage.  However, I do have some knowledge of employer health plans, and I would like to point out that all employers over a certain size, whether profit or non-profit, pay their employees' medical bills, albeit indirectly through their insurance company.  An insurance provider's main role is to act as a broker for the employer - to negotiate the fees for services, network of providers, formularies of drug coverages,etc.  Those bills are paid by the insurer, and then the costs are passed on to the employer.  That's why health benefits are such an unpredictable cost to companies.  Companies already choose which drugs to cover, based on elaborate tiers of drug formularies.  They may choose to cover certain blood pressure or cholesterol medications over others, and may choose not to cover certain drugs at all such as Viagra or fertility drugs.  Or they may choose to cover them, but charge the employee a large deductible if the employee wishes to still take that drug.  My point is that these employers get to choose, because they pay the bills.   My question is why did the HHS choose to make those 4 contraceptives REQUIRED for employers to cover, and not other drugs?  Also, please note, that I am female.  

David Gans draws the parallel to Lee:

The Court’s pre-RFRA case law interpreting the Free Exercise Clause recognized that the rights of employees do matter.  That was the lesson of United State v. Lee– a case discussed at length during the Hobby Lobby argument – in which the Supreme Court unanimously rejected an Amish business owner’s claim that he was entitled to a religious exemption from having to make Social Security payments on behalf of his employees.  The Court in that case could have said that, to accommodate Mr. Lee’s religious beliefs, the government should pay for Social Security benefits for Lee’s workers or should create a new exemption to protect his ability to run a business consistent with his religious beliefs.  But it did not.  Rather, the Court held that Lee was not entitled to a religious exemption that would “impose the employer’s religious faith on the employees.”  That’s exactly what Hobby Lobby is seeking to do here.

http://balkin.blogspot.com/2014/03/do-rights-of-employees-count-supreme....

My question is why did the HHS choose to make those 4 contraceptives REQUIRED for employers to cover, and not other drugs?  Also, please note, that I am female.

The requirement is to cover all FDA-approved methods of contraception without cost to the employee (no co-pay or deductible).

Currently, there are 20 methods. The "four" comes about because Hobby Lobby considers that those four cause abortions. They don't object to paying for the other 16. 

Sixteen different options of free birth control aren't enough?  The contraception mandate is absurd.

 

Sixteen different options of free birth control aren't enough?

They don't all do the same thing. Two that HL objects to are Plan B and ella, which are the morning-after pills. Catholic hospitals use Plan B for rape victims.

The other two are IUDs. The argument from the government is that they are much more effective than birth control pills but are too expensive ($500 to $1000) for many workers to use if they have to pay themselves.

RU-485, the recognized abortion pill, is not required to be covered. 

It's disputed whether these all prevent implantation, but HL doesn't have to prove that they do, as long as they sincerely believe that it would be wrong for them to cover them in their insurance. 

Thanks, John....JP, how embarrassing.....your comment reveals that you haven't done your homework on this issue and thus shoot from the hip (so, now Fox News is your method of analysis).  Also, you don't appear to understand the medical issues involved with women?  Reminds me of those simplistic folks who think that NFP works for everyone.

And, JP, have you ever wondered why the contraceptive discussion is only limited to medications for women - what would happen if this also include male contraceptives?

Mr. Boudway - excellent description and analysis of abortion coverage in the ACA - federal and by state exchanges.

http://www.americamagazine.org/issue/careful-reading

A couple of highlights:

- No provision in the A.C.A. expressly appropriates money for abortions themselves. As explained above, it is the absence of an express exclusion that, under existing jurisprudence, creates the problem.

- proposal that would settle many such issues is the “No Taxpayer Funding for Abortion Act” (H.R. 7, S. 946). As approved by the House in January, H.R. 7 would codify the policy of the Hyde Amendment and similar provisions, so they would no longer be subject to annual attack during the appropriations process. This policy, made consistent across the federal government, would also govern the A.C.A. and future legislation.

- If the A.C.A. further increases the role of the federal government in health coverage and applies this same policy to federal subsidies for a broader class of Americans, this may produce a “tipping point” at which health care without elective abortion becomes the norm. Abortion and abortion coverage will still be legal and available, but rare.

-

In raising the question of  what the employer is paying for, that is, is required to pay for, the author provides his own answer. In doing so, he not only muddies water he claims to be clearing up, but displays the fact that he has long since slid down the slippery slope and lies at the bottom of a ditch. 

The employer is required to cover expenses in a contract which includes payment for, and therefore acquiescence to, procedures which are repugnant to his or her firmly held religious beliefs. Those procedures included are the decision of one man in the federal government, the president, who is charged with determining how to implement he law. If this plaintiff loses, there will be no return: the determination of what is authentic religious belief will in the future be in the hands of the secular federal government, 

To complete: the determination of the individual citizen's most intimate thoughts, and his contract with God, will no longer be his property, his decision to exercise freely. Matters if individual conscience will be   In the hands of another, the secular government. 

 

Such is the law right now.and that this author neither gets it nor expresses outrage against it, should be a concern for all citizens, not just Catholics.

Mr. McDonald,

The Supreme Court has already ruled multiple times that sincere free exercise burdens can be overriden by compelling government interest.  That's not new.  We have been doing this tinkering of the balance of rights and responsibilities for a very long time. Now it's possible, maybe even likely, that Clement demonstrated sufficient problems with the government's compelling interest part of the balance. He certainly was an impressive oral advocate. But your point of concern was already addressed in Lee (1982) and Smith (1990) and in a way as far back as Reynolds (1878).

I think it's more likely that it would be decided that HHS overreached in administering a specific law and rule on those grounds, without having to decide in general about free exercise rights of a corporation. But it's hard to tell.

(written from "the bottom of a ditch")

Mr. Boudway - excellent description and analysis of abortion coverage in the ACA - federal and by state exchanges.

http://www.americamagazine.org/issue/careful-reading

When I read Mr. Doerflinger's articles i never get the feeling that he wants to negotiate solutions with people who have different views. I keep hoping that the USCCB will appoint an effective negotiator to take a creative role role working with the administration and Congress in improving the ACA. 

The Hyde amendment itself is a compromise - but better to have than not, even though it allows government funds to be used to pay for abortions (rape, incest, life of mother) that the Church teaches are wrong. 

 

Mr. Hayes - typically I would agree with your assignment of this gentleman...but, actually, feel that he is trying to offer a middle ground here.

actually, feel that he is trying to offer a middle ground here.

i don't want to do a detailed response to his article, but to address just one item , his part 2, and HR7, the bill he supports, are a bomb-throwing exercise that proposes that anyone who qualifies for  a federal subsidy to buy insurance on a health exchange must forfeit that subsidy if they buy a policy that includes coverage for abortion.

This was discussed at great length at the time the ACA was passed and the current arrangement is what people managed to agree on after long negotiations. The situation now is that people who buy a policy including abortion coverage have to pay out of their own pocket the added cost of the abortion coverage, so that no federal funds are used for that. This was modeled on the already-existing Medicaid program that required states that wanted to provide abortion coverage as part of Medicaid to pay for it out of state funds so that no federal funds subsidized it. 

The discussion of that solution went on forever back then and I don't want to suggest people reopen it here. However, there is zero liklihood of that proposal getting into law, which is why HR 7 has been dead in the water since January. 

Negotiations don't work if you keep reopening issues that have already been dealt with unless you can come up with a new proposal which is attractive to the other party. 

There are issues in the ACA which should be revised, which is why I hate to see time being wasted this way. 

Is this supposed to funny? The topic is of the greatest religious significance, namely, life, and the threat both to life itself and to those who feel compelled to protect it. Your attitude I find appalling.

You think the issue gets "emotional and inflated"?  If one does not get emotional about the issue of preserving life, of preventing government from making moral decisions which are the property of individual conscience, and stopping one man, the president of the United States, from interfering with the duties and responsibilities of the Church, exactly when, in your view, should one get emotional?

As far as your use of the derogatory term "inflated," I can only say that it represents an arrogance on your part, and a condescending attitude to those of us who are rightfully concerned about the most important issue there is, human life. If you do not respect the danger faced by the unborn,I don't know who or what you do respect.

 

 

"Kennedy introduced the idea that, by the logic of the government’s case -- in some future scenario, at the calamitous bottom of a slippery slope -- for-profit corporations could be forced to “pay for abortions.”"

Leave aside the obvious rejoinder that paying for (possible) abortions is not so much the calamitous bottom of a slippery slope but the very thing that Hobby Lobby believes it is being required to do right now.

The real problem with your argument is the notion that just because something is supposedly "illegal" under current law, Supreme Court Justices should not bother to notice that an argument pressed upon them would eliminate any basis for objecting if the legislature were to change its mind, as legislatures sometimes have been known to do and as many ACA supporters would very much prefer in this case.

To put it more concretely, if the Supreme Court accepts the contention that religious freedom does not include Hobby Lobby's right to object to complicity with what it believes (truly or not) are possible chemical abortions, then if Congress tomorrow decided that all health insurance plans must cover third-trimester abortions as well, the Supreme Court would have already implicitly blessed such a move as consistent with religious freedom. Worse than that, the Supreme Court's decision would itself give a strong impetus to abortion proponents in Congress, as they would readily find strength in pointing to the Supreme Court's implicit blessing on their wish to support abortion more freely.

It would be reassuring if a religious magazine could be more friendly towards religious liberty claims, rather than so frequently offering specious support to secular statists who would be the first to toss you to the bottom of what you think a merely hypothetical slippery slope.  

 

 

 

 

Mr. Pepperdine,

Thanks for the legal brief, brief indeed, in content. This is a bigger issue than you can comprehend apparently. You are not only in a deep, deep ditch, you are in the proverbial box. Time to find a way out and meet this horrendous danger on the plane of existence: human life and God.

 

Commonweal has been very concerned with religious liberty claims. Indeed the homepage is featuring an article right now. I myself had a piece just two weeks ago in the Washington Post suggesting that religious liberty claims need to be front and center these days, and it has been discussed here on the blog too.

What I do refuse is the apocalyptic tone of most of the debate on both sides. I do not think we are in a battle between religion and secular statism. Far from it. We are trying to balance rights in the most pluralistic society the world has ever known. I take it very seriously. Nothing about this case is obvious -- that's why it's before the Supreme Court. It is not obvious that corporations should have religious free exercise rights, nor is it obvious that the government has proven its compelling interest in the particular case of the HHS mandate.

Pages