childbirth & accommodation

[Eric W. Treene]

I'd like to withdraw what I said about that which survives Smith--I am home
sick today and not thinking as clearly as I should.  Benefits cases, though
explained away by the court in Smith, are neither hybrid right nor
non-generally applicable (indeed Smith itself was a benefits case).

But the analysis I suggested still would apply under a state RFRA analysis
or the federal RFRA (for actors like the VA.

Eric

-----Original Message-----
From: Eric W. Treene
To: RELIGIONLAW at listserv.ucla.edu
Sent: 6/12/00 3:45 PM
Subject: Re: childbirth & accommodation

 If this case involves an HMO, or a managed care plan, that does not
permit
stays over 48 for a normal delivery, and the complaint of the patient is
failure to receive coverage for the extra days in the hospital (as
opposed
to a case where they showed her the door despite a willingness to pay
out of
pocket),the Supreme Court's decision today  in Pergram v. Herdrich would
seem to make recovery under ERISA unlikely. The Court held that mixed
treatment/coverage determinations by an HMO are not reviewable by the
courts
as a violation of an HMO's fiduciary obligation.  The case Nathan
presents
would seem to be encompassed by Pergram.

But if the hospital was a government hospital, she might have a good
claim.
Since Justice Scalia explained away Sherbert etc. as government benefit
cases, a claim by the woman for payment of benefits might survive Smith.
(And if it were a VA hospital, she might have a RFRA claim).  Under
Sherbert, I would think the issue would be whether discharging her
substantially burdened her faith, which she probably could establish.
The
issue, as in the unemployment cases, should not be whether denying her
the
financial benefit burdened her faith.

Eric Treene



-----Original Message-----
From: Nathan Diament
To: RELIGIONLAW at listserv.ucla.edu
Sent: 6/12/00 9:19 AM
Subject: childbirth & accommodation

A recent inquiry that I received is as follows:

An Orthodox Jewish woman deliverd a baby in a New Jersey hospital on a
Friday.  Her Sabbath fell on the next day, and that Sunday was a Jewish
holiday as well under which she was similarly enjoined from travelling
and doing other activities prohibited on the Sabbath.  The hospital
(hmo?) insisted she leave after her 48 hours - in violation of the
holiday.

Any thoughts as to her rights, redress?

Nathan Diament
Inst. Pub. Affairs; UOJCA