Various thoughts on current events with an emphasis on politics, legal issues, sports, and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
So when the Supreme Court said in its opinion that the Administration could extend a religious accommodation and that the effect on Hobby Lobby employees would be “precisely zero,” the Court was wrong—its employees are likely being denied coverage right now. Although that gap is probably temporary, it could result in serious, irreversible financial and personal harm to women.
Just to "update" how Hobby Lobbyburdened employees (and their religious beliefs -- they matter right?) because their employers in the public sphere have a different religious belief. As cited in an article linked in the piece, a law "restoring" things to past law would seem to guard against this sort of thing, since:
“[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.”
But, other than trying to paper over the burden, the majority here (though Kennedy's opinion clouds things) makes past case law somewhat irrelevant. The Religious Freedom "Restoration" Act really isn't about returning to past law even though "the compelling interest test as set
forth in prior Federal court rulings is a workable test for striking
sensible balances between religious liberty and competing prior
governmental interests" is cited in the law itself. Just what the law overall requires is unclear, but on balance, pre-Smith case law is a sound guidepost here.
The above is posted as a reminder and also because of a recent post at Balkinization, which also has an interesting ongoing series on public health and the First Amendment. I agree with the argument that commercial speech deserves protection though intermediate scrutiny might be warranted in some cases where ideological or other questionable grounds are the "purpose or effect" of regulations. A recent post addresses a shift in abortion law where conservative medical facts (court "facts" are troubling things) are cited as "objective and neutral" things, somewhat different from the days of Blackmun authored opinions. The "abortion regret" issue is cited. Putting aside that, yes, facts can be ideological, the bottom line there to me is that we sometimes regret choices we have the right to make.
The answer there was that fully informing the woman, not removing the right to an abortion procedure that at times would be the right legal or moral choice (the latter tellingly noted in passing in one of the oral arguments). It can be a tricky thing, especially in the context of regulation of professional speech, to hold that certain things are violations of the First Amendment (or the right to choose). This is true even if we are talking bad policy. I do think the ideologically slanted nature of these things are problematic on speech grounds, even if Casey held the state can favor life here. This is so even though I agree with Stevens/Blackmun there that "informed choice" and slanted coerced physician speech to push the choice in one direction favored by certain abortion views is not the same thing.
Things like forced sonograms are a problem (icky teeth image) for other reasons too, including adding costs and any physical invasions required. One concern cited is the psychological harm to some women and Prof. Colb, who is somewhat sympathetic to some sort of informed consent rules, finds this in particular makes forced sonogram images unconstitutional. The costs of various requirements, especially early in the pregnancy, is a problem here as well. Nonetheless, especially given current law, requiring clinics for second and third trimester abortions to provide the option would be different. Some abortion clinics do this anyway. It would truly add an objectively neutral criteria for true informed consent and promote "life" in the process as well. There are ways to do this that are not inappropriate.
Finally, to remind, the Supreme Court temporarily stayed part of an oppressive abortion regulation from Texas (Linda Greenhouse provides hypos) with reproduction rights advocates rightly hesitant to be overly excited. The lack of good faith here as to applying neutral medical rules or applying precedent for that matter is telling. The ideological nature of the legislation underlines that even commercial or professional speech and other regulations at times should be taken with a grain of salt.*
* It is notable that in Casey as well as the gay rights cases, we hear tell of "purpose and effect" of governmental action. This was seen as notable over a hundred years ago in the Yick Wo case, where an allegedly neutral law was applied in a discriminatory way. It is a realistic way to uphold rights.