Contraceptives and gender discrimination

Marty Lederman lederman.marty at gmail.com
Sat Feb 11 13:32:52 PST 2012


FWIW, I have a few questions and observations about the nature of the
religious liberty concerns -- and in particular, whether there's anything
to the notion that the HHS reg would put employers to a choice between
complying with the law and with religious obligation -- here:

http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/a-question-from-marty-lederman.html

Just starting to think these questions, through, however.  Would welcome
any re



On Sat, Feb 11, 2012 at 4:22 PM, Walsh, Kevin <kwalsh at richmond.edu> wrote:

> Perhaps the Administration finally began to understand that the religious
> liberty concerns were real and widespread, that this was not "an issue
> where the vast majority of their believers disagree with the bishops."
> Moreover, the Administration realized that this wasn't just about "the
> bishops." As Amy Sullivan pointed out in the Atlantic, the list of
> Catholics seeking a broader exemption "includes precisely those Catholic
> hospital officials and progressive nuns whose support of health reform
> provided reassurance and cover for the holdout Catholic Democrats who voted
> to make it law. In doing so, they made possible the largest expansion of
> contraception access in U.S. history." For Sullivan's full story see
> http://www.theatlantic.com/politics/archive/2012/02/the-contraception-coverage-debate-isnt-just-about-the-bishops/252780/.
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
> On Behalf Of Marci Hamilton [hamilton02 at aol.com]
> Sent: Saturday, February 11, 2012 2:36 PM
> To: Gilbert, Lauren
> Cc: Con Law Prof list
> Subject: Re: Contraceptives and gender discrimination
>
> 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<mailto:
> 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<mailto:
> 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<http://humbach.net>
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu<mailto:
> conlawprof-bounces at lists.ucla.edu> [conlawprof-bounces at lists.ucla.edu
> <mailto:conlawprof-bounces at lists.ucla.edu>] on behalf of Douglas Laycock [
> dlaycock at virginia.edu<mailto: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>
> [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<http://humbach.net>
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu<mailto:
> conlawprof-bounces at lists.ucla.edu> [conlawprof-bounces at lists.ucla.edu
> <mailto:conlawprof-bounces at lists.ucla.edu>]
> on behalf of Scarberry, Mark [Mark.Scarberry at pepperdine.edu<mailto:
> 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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