Update: Linda Greenhouse's discussion of the new regulations states that the Hobby Lobby workaround option is not present. It also notes something else I have seen addressed -- the application to "moral" objections is not a legitimate application of the law (the "R" in RFRA is "religious" even if some states have broad "conscience" exemptions) and it was not put in place using the right procedure (this impatience was also seen in the travel ban cases). See also here. I think it will be tweaked (see travel ban though that case suggests maybe not too much) especially given the presence of litigation, which has already started.
As usual, keeping track of all of this is confusing. The whole special rights for religious objections, with the courts trying to figure out the nuances, continues to be taken to dubious lengths. When RFRA applied to the states, Scalia spoke of the problems. But, suddenly he went along without comment when it was applied to federal practice. The problems behind his concerns (back to the Oregon v. Smith case) have not disappeared so it is unfortunate he did not at least write a concurring opinion to address the sentiments of the person in the previous link and others like her.
This expanded discussion still leads me wondering exactly the scope of the move. Note particularly reference to an upcoming release of regulations that are over one hundred pages long.
The Hobby Lobby decision, to retain Kennedy's vote, assumed that the contraceptive mandate was a compelling state interest and that the opt out demanded did not burden female employees (as a tweet notes, the mandate concerns not just women, there are two parents involved). This is dubious in practice, but does depend on the actual regulations, what the employer has to do and the coverage still available. So, e.g., Zubik v. Burwell was punted by the Supreme Court. Just what employers could be required to do here does not seem to have been fully clarified.
The usual concern for supporters of the benefit here is the burden on health and particularly women's health. So, there is a basic choice being made to what is a proper benefit (part of an insurance package one pays for to be clear, it is not "free") -- with some libertarian pushback -- and debates with a sex/gender component (use of birth control seen as "slutty" etc.). But, as with the same sex marriage debate, there is also a special use of religious and conscience (a more open-ended thing) arguments.
Hobby Lobby was problematic as the dissent spells out. Employers have a certain obligation to provide benefits to employees and do other things that might in some fashion conflict with the owner's beliefs. Selectively focusing on contraceptives has a certain sectarian character here. Look at the essential benefits package. Various ones possibly might conflict with religious beliefs. Certain surgery that might threaten a fetus. Use of pro-GLBTQ therapy. Certain usages of drugs. And so on. Many of these things maybe won't seem likely to come up. Vaccination is one area that belies that. But, anyway, that is not how religious freedom works. Religious liberty includes rights for small groups.
Finally, I find it helpful to look at this from the other end. Health insurance provides individual workers a better ability to make life choices that reflect their own personal conscience. This is a sound approach -- Planned Parenthood v. Casey, e.g., specifically noted abortion is a choice that has a special conscientious component, one the Constitution leaves largely to an individual to choose among various options. Like is the case for the right to counsel, this right often is severely burdened if one lacks the means to freely make it. Denial here has much more direct effects than the indirect involvement of employers akin to them paying people who then use the money in ways employers dislike.
Employment based insurance in fact is a type of compensation in the current system. Again, if this is a problem, there is a slippery slope. In the past, minimum wage was seen as unnatural, there a just wage that grows out of the nature of things, having a religious component. In U.S. v. Lee, social security benefits was not seen as a violation of the free exercise rights of Amish. As with the idea that IUDs and certain birth control pills are "murder" because of a minimal possibility that they might interfere with implantation (something current science appears to factually reject anyhow), at some point you are going to stretch things too far to work.
And, this is even more the case if we recognize a true understanding of religious liberty, which will include government regulation. For instance, doubtful that those who support these changes disagree with protection of religious liberty found in civil rights law, including employees having rights to pray and so forth at workplaces. What this amounts to is a selective view of religious liberty, one that breaks both parts of the 1A provsiion. See Harris v. McRae, where both establishment and free exercise arguments were raised, if imho not adequately honored. The pro-abortion rights aspect of this warrants more attention.
Finally, some argue that my concerns miss the point -- the free exercise benefits of the contraceptive mandate lack the same state action concern as government regulations that burden religious practice. Various replies. First, as explained, the public marketplace is not a "private" zone and more regulations are appropriate there. Second, there is a selective nature to the exceptions here enforced by governmental action as well as government benefits like funding only certain pregnancy related choices based on certain moral beliefs. All are "health" related, thus the usage of the blog label. And, government regulations in various ways appropriately advance personal interests, including religious freedom. The strength of the interest there matters.
As usual, keeping track of all of this is confusing. The whole special rights for religious objections, with the courts trying to figure out the nuances, continues to be taken to dubious lengths. When RFRA applied to the states, Scalia spoke of the problems. But, suddenly he went along without comment when it was applied to federal practice. The problems behind his concerns (back to the Oregon v. Smith case) have not disappeared so it is unfortunate he did not at least write a concurring opinion to address the sentiments of the person in the previous link and others like her.
This expanded discussion still leads me wondering exactly the scope of the move. Note particularly reference to an upcoming release of regulations that are over one hundred pages long.
The Hobby Lobby decision, to retain Kennedy's vote, assumed that the contraceptive mandate was a compelling state interest and that the opt out demanded did not burden female employees (as a tweet notes, the mandate concerns not just women, there are two parents involved). This is dubious in practice, but does depend on the actual regulations, what the employer has to do and the coverage still available. So, e.g., Zubik v. Burwell was punted by the Supreme Court. Just what employers could be required to do here does not seem to have been fully clarified.
The usual concern for supporters of the benefit here is the burden on health and particularly women's health. So, there is a basic choice being made to what is a proper benefit (part of an insurance package one pays for to be clear, it is not "free") -- with some libertarian pushback -- and debates with a sex/gender component (use of birth control seen as "slutty" etc.). But, as with the same sex marriage debate, there is also a special use of religious and conscience (a more open-ended thing) arguments.
Hobby Lobby was problematic as the dissent spells out. Employers have a certain obligation to provide benefits to employees and do other things that might in some fashion conflict with the owner's beliefs. Selectively focusing on contraceptives has a certain sectarian character here. Look at the essential benefits package. Various ones possibly might conflict with religious beliefs. Certain surgery that might threaten a fetus. Use of pro-GLBTQ therapy. Certain usages of drugs. And so on. Many of these things maybe won't seem likely to come up. Vaccination is one area that belies that. But, anyway, that is not how religious freedom works. Religious liberty includes rights for small groups.
Finally, I find it helpful to look at this from the other end. Health insurance provides individual workers a better ability to make life choices that reflect their own personal conscience. This is a sound approach -- Planned Parenthood v. Casey, e.g., specifically noted abortion is a choice that has a special conscientious component, one the Constitution leaves largely to an individual to choose among various options. Like is the case for the right to counsel, this right often is severely burdened if one lacks the means to freely make it. Denial here has much more direct effects than the indirect involvement of employers akin to them paying people who then use the money in ways employers dislike.
Employment based insurance in fact is a type of compensation in the current system. Again, if this is a problem, there is a slippery slope. In the past, minimum wage was seen as unnatural, there a just wage that grows out of the nature of things, having a religious component. In U.S. v. Lee, social security benefits was not seen as a violation of the free exercise rights of Amish. As with the idea that IUDs and certain birth control pills are "murder" because of a minimal possibility that they might interfere with implantation (something current science appears to factually reject anyhow), at some point you are going to stretch things too far to work.
And, this is even more the case if we recognize a true understanding of religious liberty, which will include government regulation. For instance, doubtful that those who support these changes disagree with protection of religious liberty found in civil rights law, including employees having rights to pray and so forth at workplaces. What this amounts to is a selective view of religious liberty, one that breaks both parts of the 1A provsiion. See Harris v. McRae, where both establishment and free exercise arguments were raised, if imho not adequately honored. The pro-abortion rights aspect of this warrants more attention.
Finally, some argue that my concerns miss the point -- the free exercise benefits of the contraceptive mandate lack the same state action concern as government regulations that burden religious practice. Various replies. First, as explained, the public marketplace is not a "private" zone and more regulations are appropriate there. Second, there is a selective nature to the exceptions here enforced by governmental action as well as government benefits like funding only certain pregnancy related choices based on certain moral beliefs. All are "health" related, thus the usage of the blog label. And, government regulations in various ways appropriately advance personal interests, including religious freedom. The strength of the interest there matters.
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Thanks for your .02!