Contraceptives and gender discrimination

Sat Feb 11 14:48:05 PST 2012

"How this violates the freee exercise clause..."??

The underlying question, I suppose, is this: Does the free exercise clause prohibit government from forcing people to do acts that their religious tenets forbid (eating pork, cutting their hair, going out to kill people in war, etc.)? 

We know from the Smith (peyote) case that the free exercise clause doesn't necessarily prevent general laws that require people to *refrain* from acts that their religious tenets might require (such as smoking peyote or child marriages).  But cf. Lukumi Babalu (striking down a prohibition on animal sacrifice aimed specifically at a religious rite). 

However, it seems to be one thing to say that the government can forbid religion-mandated affirmative acts under "general" laws and quite another to let the government coerce people to do acts forbidden by their religion. Perhaps part of the difference is that many affirmative acts cause obvious social harm, even when they're motivated by religion, while mere abstention from action rarely is a "cause" of harm (though it may be deemed a failure to prevent it).

Anyway, I don't think the Supreme Court has spoken on the power of government to coerce contra-religious acts. But I think that some lower courts have, especially in prisoner cases (hair cutting) and, perhaps, employment discrimination cases (sabbath working requirements?).

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 Crowley, Donald [crowley at uidaho.edu]
Sent: Saturday, February 11, 2012 5:02 PM
To: Walsh, Kevin; Marci Hamilton; Gilbert, Lauren
Cc: Con Law Prof list
Subject: RE: Contraceptives and gender discrimination

Real meaning what?  I certainly think that some people think that their
religious liberty is being harmed and in that since it is real.  However
I haven't yet heard a convincing argument for how this violates the free
exercise clause.  Mark argues that it is "unwise".  While I disagree
with that judgment it really isn't an argument about the free exercise
clause.

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Saturday, February 11, 2012 1:22 PM
To: Marci Hamilton; Gilbert, Lauren
Cc: Con Law Prof list
Subject: RE: Contraceptives and gender discrimination

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-co
verage-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.e
du> 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.e
du>
[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.e
du>
[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 p
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