Contraceptives and gender discrimination

Sat Feb 11 11:36:00 PST 2012

Does anyone have any insights into why the Administration would cave to the bishops on an issue where the vast majority of their believers disagree with the bishops?   In raw numbers, the Administration just caved to a vocal minority knowing full well statistically that the vast majority of Catholics do not oppose contraception.    Not to mention the general population
I understand that vocal minorities can succeed in the legislative process out of the spotlight. 

But this was all over the news

All theories welcome

Marci

On Feb 11, 2012, at 2:08 PM, "Gilbert, Lauren" <lgilbert at stu.edu> wrote:

> I am struck by the fact that women are missing from this entire discussion, both in terms of the participants and the arguments for and against requiring insurance companies to provide free contraceptives.  Wouldn't the U.S. government's failure to provide free contraceptives at this point be a form of gender discrimination, especially in light of the fact that the reason the Obama Administration has decided to support these changes is being driven largely by pressure being exerted by the Catholic Church?  This is not just about religious freedom; it's about the subordination of women within the family and other societal structures.  A gender analysis is much needed here.   During the International Conference on Population and Development, the Vatican aligned itself closely to conservative governments seeking to limit access to contraceptives. The same thing happened at the Women's Conference a year later, particularly in limiting women's reproductive rights. 
>  
> This is not just about religious freedom.  For Congress and the Executive to give in to these political influences would arguably rise to the level of gender discrimination in violation of Equal Protection, since there would not only be a discriminatory impact on women, but arguably, state action, since the motivations behind pressing for these changes are at least in part driven by the Catholic Church's (and certain members of Congress') views on women's proper role within the family. 
>  
> In Geduldig v. Aiello, arguably there was not gender discrimination, because the intent behind the law was to protect the insurance program and save money.  The same cannot be said for the intent behind these changes. 
>  
> By the way, I say this as a Catholic law professor teaching at a Catholic institution.
>  
> Lauren Gilbert, Esq.
> Professor of Law
> St. Thomas University School of Law
> 16401 NW 37th Ave.
> Miami Gardens, FL  33054
> Tel:  (305) 623-2386 (work)
> You can access my papers on the Social Science Research Network (SSRN) at http://ssrn.com/author=339800
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Humbach, Prof. John A.
> Sent: Sat 2/11/2012 1:33 PM
> To: Douglas Laycock; 'Con Law Prof list'
> Subject: RE: President's new policy on contraceptive etc. coverage
> 
> To Professor Laycock and others re "One reason insurers don't like to cover preventive medicine..."
> 
> Here may be another reason why insurers don't like to cover preventive medicine. The insurance industry makes its money in proportion to cash flow, not by reducing the cost of health care overall. They're better off when more is spent on health care rather than less, as long as they can set their presiums proportionately.
> 
> Indeed, "margin" or "profits as a percentage of revenues" is a key Wall Street measure of performance, and it's especially relevant to regulators in a regulated industy.
> 
> If the US spent 1/3 as much as it does on health care (like most advanced countries), the insurers would almost surely make less money in absolute terms, not more. The regulators would probably let them keep their same percentage margins, but their margins in absolute terms would be cut greatly.
> 
> To take the extreme case, suppose there was a pill that cost $1 per year and would assure perfect health until the moment of death. Obviously, such a pill would drastically reduce the health care costs that insurance companies have to pay, but it would also put them out of business.
> 
> John A. Humbach
> Professor of Law
> Pace University School of Law
> 78 North Broadway
> White Plains, New York 10603
> 914-422-4239
> 
> Personal website: humbach.net
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Douglas Laycock [dlaycock at virginia.edu]
> Sent: Saturday, February 11, 2012 12:55 PM
> To: 'Con Law Prof list'
> Subject: RE: President's new policy on contraceptive etc. coverage
> 
> One reason insurers don't like to cover preventive medicine, including
> contraception, is that they pay the costs now but may not get the benefits
> later. The insured may have changed jobs, or the employer may have changed
> carriers, before the later savings arrive.
> 
> That would seem to be less of a problem with contraception, where they
> savings may be only nine months away. And health insurance is certainly not
> my field. But I have heard this explanation offered for why regulators had
> to mandate coverage of preventive medicine.
> 
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia Law School
> 580 Massie Road
> Charlottesville, VA  22903
>      434-243-8546
> 
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Humbach, Prof. John
> A.
> Sent: Saturday, February 11, 2012 12:42 PM
> To: Scarberry, Mark; Con Law Prof list
> Subject: RE: President's new policy on contraceptive etc. coverage
> 
> If  "insurance companies are not harmed by being required to provide such
> coverage - then why is there a need to require that insurance companies
> provide that coverage?"
> 
> What you've got here looks like the "petty larceny of the police power,"
> pure and simple.
> 
> But who is really going to bear the cost? You've got to admire the
> administration's embrace of the old "Iraq war will pay for itself" (or
> "lower taxes pay for themselves") style of economics. Maybe in this case
> it's right??
> 
> But note this: Even if providing the disputed services really is less
> expensive for the insurers, they still might not necessarily include them
> under their policies on their own. The reason is that some of their big
> customers, such as religious-affiliates, only want to buy policies that
> don't include such coverage (and, maybe, are even willing to pay more for
> it).
> 
> John A. Humbach
> Professor of Law
> Pace University School of Law
> 78 North Broadway
> White Plains, New York 10603
> 914-422-4239
> 
> Personal website: humbach.net
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
> on behalf of Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
> Sent: Saturday, February 11, 2012 1:02 AM
> To: Con Law Prof list
> Subject: President's new policy on contraceptive etc. coverage
> 
> Cross-posted to conlawprof and religionlaw:
> 
> Two questions about the President's new policy, which some are describing as
> a compromise:
> 
> 1. Does the Affordable Care Act give the President (or Sec. Sebelius)
> authority to require insurance companies to pay for care that isn't covered
> by their insurance policies? As I understand it, the Catholic hospitals etc.
> who have religious objections to paying for insurance that provides for
> contraceptives, tubal ligations (being called sterilization by opponents of
> the regulations), morning-after pills (however you want to categorize them),
> etc., will be permitted to buy insurance policies that do not cover such
> services or drugs. But the insurance companies then will be required to pay
> for the services and drugs (to provide for employees to receive the services
> and drugs at no cost). How can the insurance companies be required to
> provide services and drugs that aren't covered under the policies that
> they've written? Isn't that a kind of confiscation of the insurance
> companies' funds, or at least a tax? Does the President have authority to
> impose a tax?
> 
> 2. If we treat the regulations as imposing a mandatory policy provision
> (requiring coverage with no co-pays for such drugs and services whether or
> not the insured wants such coverage), then perhaps the President (or Sec.
> Sebelius) can point to some regulatory authority that is granted under the
> ACA, and perhaps this is not a confiscation of funds or a tax. But then in
> what sense can we say that the Catholic hospitals and other organizations
> are not being required to pay for insurance policies that provide for such
> drugs and services?
> 
> 3. If insurance companies save money by providing such drugs and services,
> because of cost savings on pregnancies that are prevented - so that
> supposedly the premiums will not reflect any cost of such coverage, and so
> that, supposedly, insurance companies are not harmed by being required to
> provide such coverage - then why is there a need to require that insurance
> companies provide that coverage? Wouldn't they do it voluntarily if it would
> save them money? If an insurance company voluntarily provides coverage
> beyond what the policy requires, then there is a strong case to be made that
> the buyer of the insurance - the Catholic hospital, for example - is not
> complicit in what Catholic teaching considers to be sinful. Why impose a
> requirement that does make them complicit if there is no need to do so?
> Doesn't the requirement that insurance companies provide such coverage make
> it rather clear that the coverage does cost something, and thus will be
> reflected in the premiums paid !
>  by the religious organizations? Or is the requirement just a way of showing
> Catholics that they have to toe the line?
> 
> I'm not Catholic, and I don't see anything wrong with use of birth control
> or (where a mature decision is made) with tubal ligations. I do respect the
> teachings of the Catholic Church and think the President's policies here are
> unwise. The new policy seems in addition to be disingenuous and perhaps
> beyond the President's authority.
> 
> Mark Scarberry
> 
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
> 
> 
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