Contraceptives and gender discrimination

Crowley, Donald crowley at uidaho.edu
Sat Feb 11 12:06:32 PST 2012


While I wouldn’t have been upset to see the Obama Administration stick to its original version, I’m not sure why you characterize what they did as “caving”.  The point was to make sure woman had access to contraception—not to have a Con Law discussion on the borderlines between religious liberty and government mandates.  The revised policy seems to accomplish the goal and, if only temporarily, skirts the rest.  I would call that good policy making.  

 

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> 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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