contraceptives and RFRA

Ira Lupu iclupu at
Wed Feb 15 16:13:24 PST 2012

Apropos of Alan's comment below, the proposed "Respect for Rights of
Conscience Act,"
includes the following provision:

"(H) ACTUARIAL EQUIVALENCE- Nothing in this paragraph shall prohibit the
Secretary from issuing regulations or other guidance to ensure that health
plans excluding specific items or services under this paragraph shall have
an aggregate actuarial value at least equivalent to that of plans at the
same level of coverage that do not exclude such items or services.’."

On Wed, Feb 15, 2012 at 6:59 PM, Alan Brownstein
<aebrownstein at>wrote:

>  With regard to exemptions from “an expensive obligation” and their
> propensity to result in sham claims, I think there are ways to structure an
> exemption to mitigate if not eliminate that problem. The individuals or
> institutions seeking an exemption have a right to religious liberty – to
> not having to act in ways that violate their faith. They have no right to
> be relieved of the same level of material burdens that other similarly
> situated individuals and institutions must bear. Accordingly, it might be
> appropriate to condition an exemption on the religious individual or
> institution directing the secular benefits it receives from the exemption
> to some other public good (that is consistent with its religious beliefs.)
> ****
> ** **
> We do something like this when we require conscientious objectors to
> perform alternative service as a condition to their being exempt from
> military conscription (although it is clearly not a complete quid quo pro.)
> ****
> ** **
> If the secular value of the exemption has to be reallocated to other
> public goods, that would discourage sham exemptions in many cases.****
> ** **
> Alan Brownstein  ****
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