Contraceptives and gender discrimination

Clayton, Cornell William cwclayton at wsu.edu
Sat Feb 11 12:05:16 PST 2012


I think the answer to why the Administration caved is relatively easy.  The “vocal minority” in this case happens to be influential with a key group of swing voters in key swing states.  Those who feel strongly about healthcare equality for women are already likely to vote for Obama, so sticking to the original policy was unlikely to garner more supporters for Obama.  On the other hand, compromising with the Catholic bishops may not win over new supporters to the administration either (those who feel strongly about religiously affiliated institutions not being forced to provide contraceptive care probably are not voting for Obama anyway), but it could certainly prevent further defection from that crucial bloc of the white Catholic voters.  The campaign strategy is not about winning over a majority of Americans, but a majority of voters in a few swing states, in some of which the Catholic vote is critical.


Cornell

Cornell W. Clayton
Director, Thomas S. Foley Institute of Public Policy and Public Service
C.O. Johnson Distinguished Professor of Political Science
Washington State University



From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Saturday, February 11, 2012 11:36 AM
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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