Contraceptives and gender discrimination

Marci Hamilton hamilton02 at
Sun Feb 12 20:52:28 PST 2012

I said there are constitutional interests on both sides.   Not that either side necessarily has a right in the particular case.   The religious organizations have no First Amendment free exercise right
 to avoid a generally applicable health care mandate.   Women don't have a right to have government pay for birth control.   
My main point was that the demand for religious accommodation is no more constitutionally valuable than the woman's privacy interests.  

Women need birth control for a wide variety of ailments including pelvic inflammatory disease and excessive bleeding and/or pain associated with menstruation.   


On Feb 12, 2012, at 8:52 PM, "Zietlow, Rebecca E." <REBECCA.ZIETLOW at> wrote:

> 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. 
> Rebecca Zietlow
> From: Richard Dougherty [doughr at]
> 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.
> Richard Dougherty
> On Sun, Feb 12, 2012 at 6:51 PM, Marci Hamilton <hamilton02 at> 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 
> Marci
> On Feb 12, 2012, at 7:23 PM, "Zietlow, Rebecca E." <REBECCA.ZIETLOW at> 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?
>> Rebecca Zietlow
>> ________
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