Contraceptives and gender discrimination
davidebernstein at aol.com
davidebernstein at aol.com
Sun Feb 12 19:11:48 PST 2012
According to Planned Parenthood's website, birth control pills cost $15 to $50 a month. While I realize that this can be a significant burden for someone of low income, I have to imagine that the pool of individuals who both work for Catholic institutions and truly can't afford this fee is small, and could likely be taken care of by a far less involved method than requiring Catholic institutions to cover birth control for all employees.
From: Zietlow, Rebecca E. <REBECCA.ZIETLOW at utoledo.edu>
To: Richard Dougherty <doughr at udallas.edu>; Marci Hamilton <hamilton02 at aol.com>
Cc: Con Law Prof list <conlawprof at lists.ucla.edu>
Sent: Sun, Feb 12, 2012 8:53 pm
Subject: RE: Contraceptives and gender discrimination
No one is denying a constitutional right to birth control to women. Lack of access to insurance for birth control may effectively bar low income women who work for Catholic run institutions from obtaining birth control. However, as we all know, the government has no affirmative obligation to subsidize the exercise of any constitutional right. My point was simply that enabling those women to have effective access to birth control is a strong enough government interest to justify any incidental burden on Catholic run institutions imposed by the Obama policy. And, that this is an issue that uniquely affects women.
And yes, birth control is often prescribed for reasons other than contraception, to treat medical conditions including hormonal imbalances etc.
From: Richard Dougherty [doughr at udallas.edu]
Sent: Sunday, February 12, 2012 8:40 PM
To: Marci Hamilton
Cc: Zietlow, Rebecca E.; Con Law Prof list
Subject: Re: Contraceptives and gender discrimination
Perhaps I am missing something major here. Is someone denying women their constitutional right to purchase birth control? Isn't the only question here whether women -- or spouses of men -- working for Catholic organizations, can get it for "free"? (Of course it won't be free for anyone, as everyone will be paying higher premiums; insurance companies aren't in the charity business.)
Prof. Zietlow I think hit upon a very important aspect of this question. When Viagra was invented/discovered/popularized, and it got insurance coverage, that did prompt states to pass their requirement for birth control coverage. But one (not me) might argue that there was a medical disability that argued in favor of coverage (is ED covered under the ADA? I honestly don't know). I'm not aware of the comparable argument for birth control, but I am willing to be educated on it.
On Sun, Feb 12, 2012 at 6:51 PM, Marci Hamilton <hamilton02 at aol.com> wrote:
Rebecca and Lauren are correct. The bishops are also opposed to constitutional rights for women and privacy rights generally. This is just another plank in their platform on these issues. It is worthwhile to keep in mind that this scenario involves constitutional interests on both sides at every level and there is a great deal at stake for women generally. To treat the organization's religious claims as though they are the only ones to analyze is a gross oversimplification
On Feb 12, 2012, at 7:23 PM, "Zietlow, Rebecca E." <REBECCA.ZIETLOW at utoledo.edu> wrote:
I agree with Lauren that there is a gender equality issue here. I understand that in 2000, the EEOC agreed as well, and issued a ruling that employers who provide insurance coverage for Viagra but deny coverage for birth control violate Title VII. The Con law issue is that apparently the Catholic church challenged this application of Title VII on free exercise grounds and lost in a couple of lower court rulings. The only thing different now is that the Catholic employers are being required to pay for coverage, but I think Obama took care of that issue with the policy modification on Friday (others may disagree).
This whole scenario has striong implications for women's rights, including both sex equality concerns and the constitutional right to use birth control. Wouldn't the government's interest in protecting those rights be sufficiently strong to justify the Obama policy if it was challenged by the Catholic church as violating the FE Clause?
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