Wednesday, October 31, 2012
BYU Professor Gedicks Answers Criticisms of Paper Detailing Weaknesses of Legal Challenges to Contraception Coverage
In the wake of the suicide boming of a Catholic church in northern Nigeria over the weekend, this piece in the Daily Telegraph by Rupert Shortt recounts the deeply troubling persecution of Christians in parts of the world and the neglect of the story in much of the West:
Why does all this matter? One obvious answer is that faith isn’t going to go away. Whatever one’s view of the coherence of religious belief, it has become clear that secularisation has gone into reverse, partly through the spread of democracy. Three quarters of humanity now profess a religious creed; this figure is predicted to reach 80 per cent by mid-century.
The prospect should not surprise us. Atheism feeds off bad religion, especially fundamentalism, whose easily disposable, dogmatic certainties now form one of atheism’s main assets. On the other hand, it is much harder for non-belief to replace the imaginative richness of a mature religious commitment, and the corresponding assurance that life is worth living responsibly, because it has ultimate meaning.
But faith is like fire, to cite an analogy used by the Chief Rabbi, Jonathan Sacks. It warms; but it can also burn. Along or near the 10th parallel north of the equator, between Nigeria and Indonesia and the Philippines, religious fervour and political unrest are reinforcing each other. This point should be granted even if one accepts religion’s status as an immense – perhaps the preeminent – source of social capital in existence.
Tuesday, October 30, 2012
Michael Perry links here to my friend Fred Gedicks's "Policy Brief", done for the American Constitution Society, on the HHS mandate. I think the world of Fred and his work, but his policy brief misses the mark in a number of important respects. (I wonder if Michael agrees with Fred's arguments?)
Obviously, the paper is intended to be a "policy brief", and so there's no reason to expect it to deal comprehensively with the matters covered. But, Fred is too quick to conclude -- indeed, he is wrong to conclude -- that the mandate does not impose a substantial burden on the religious exercise of at least some religious employers who are currently subject to the mandate. And, he is wrong in asserting that requiring these employers to provide the coverage in question is, within the meaning of RFRA, the least restrictive means of achieving the government's interest. And, he is wrong (though this is obviously a "deeper" question) in his assertion / assumption that "access to contraception" -- when "access" means "provision at someone else's expense", as opposed to "legal access" -- is a "fundamental" right or liberty.
What's more, it is a mistake to contend, as Fred does, that a religious employer seeking to exercise its religious-freedom right not to provide the coverage in question is burdening the religious liberty of employees who (i) desire the coverage and (ii) have no moral or religious objection to contraception or sterilization.
I have elaborated on these points in various places, and won't impose them on readers again. But, I do regret being on the other side -- the correct side, in this case, but still the other side -- from Fred on this one.
As those of us in the East clean up from Hurricane Sandy and try to bring things back to normal, Walter Russell Mead reflects in a lovely essay here on the fragility of life before nature's power. A short excerpt:
Strangely, that admission of weakness opens the door to a new kind of strength. To acknowledge and accept weakness is to ground our lives more firmly in truth, and it turns out that to be grounded in reality is to become more able and more alive. Denial is hard work; those who try to stifle their awareness of the limits of human life and ambition in the busy rounds of daily life never reach their full potential.
To open your eyes to the fragility of life and to our dependence on that which is infinitely greater than ourselves is to enter more deeply into life. To come to terms with the radical insecurity in which we all live is to find a different and more reliable kind of security. The joys and occupations of ordinary life aren’t all there is to existence, but neither are the great and all-destroying storms. There is a calm beyond the storm, and the same force that sends these storms into our lives offers a peace and security that no storm can destroy. As another one of the psalms puts it, “Weeping may endure for a night, but joy cometh in the morning.” Accepting your limits and your dependence on things you can’t control is the first step on the road toward finding that joy.
Monday, October 29, 2012
First of all, welcome back, Michael, to these pages, and thank you for posting the abstract of Frederick Mark Gedicks’s abstract. I look forward to reading the full essay soon, and that effort may prompt some further reflections from this scribe. But I think it important, given the significance of the matters which Professor Gedicks addresses in his abstract and the impact his general thoughts will have on certain events associated with next Tuesday, November 6, to offer these thoughts on his major contentions now.
There is no question that the Patient Protection and Affordable Care Act of 2010 (the Act) poses questions about religious liberty. The Act and its regulatory scheme have served as a catalyst of a good number of employers who are demonstrating in existing litigation why there Constitutionally protected freedoms are under impermissible attack. Whether the Act poses questions about Supreme Court and other judicial decisions is another matter. As Justice Ginsburg stated in her concurring and dissenting opinion in National Federation of Independent Business v. Sebelius, “A mandate to purchase a particular product would be unconstitutional if…the edict…interfered with the free exercise of religion…”
The so-called “contraception mandate” is a two-edged sword. Without it, those people who want artificial contraception paid for by health insurance consider themselves denied an entitlement which is not mentioned in the Constitution but is mentioned in the Act. With it, those people who, because of their religious convictions which are protected by the Constitution, must sacrifice their Constitutionally protected right to a right generated by legislation and regulation. The issue is this, and it is starkly simple.
But the abstract suggests that it is more complicated. Is the issue solely one of the state excusing a religious believer from complying with a statutory/regulatory scheme that imposes on the liberty of the person who wishes to have free artificial contraception, or as Professor Gedicks argues, “by imposing on [those who want subsidized contraception paid for by the objecting religious believer] the costs and consequences of religious beliefs that they do not share?”
One thought in response to his contention is that Congress could have done a better job in protecting both claims, the Constitutional one and the statutory/regulatory one, but it did not. Nevertheless, the abstract suggests that the Constitutional claim is inferior to the statutory/regulatory one of the Act. Professor Gedicks emphasizes this perspective by stating that the Constitutional right does not permit the holder to “interfere with the liberty of others”; thus, “religious liberty may not be used by a religious employer to force employees to pay the costs of anti-contraception beliefs that they do not share.”
The First Amendment jurisprudence does not address the specific facts of this matter, but the text of the First Amendment does: “Congress shall make no law… prohibiting the free exercise [of religion].” Did not Justice Ginsburg make this point in her concurrence/dissent as I have already pointed out? There is a contention in the abstract that the liberty which emerges from a statutory/regulatory scheme is not only the equivalent of the Constitutional claim but might even surpass it when “fundamental” access to contraception is challenged. This contention is on shaky ground because the Constitutionally protected right that is asserted by religious employers is not prohibiting all access to contraception; rather, the argument is contending that this access must not be underwritten by the person who objects to paying for it on a Constitutional right that will otherwise be compromised—a compromise which violates an unambiguous Constitutional claim.
The further arguments advanced by the abstract about the advancement of women, the spacing of pregnancies, the enhancing of health including the new-born, and access to participation in the workplace are not what are at issue and should not be used to camouflage what is really at stake: the unambiguous Constitutional right of the free exercise of religion.
It may be that Professor Gedicks develops a response to this concern in the full essay, but I am troubled by the statement in the abstract that the financial obstacle for low or no-income women to have to pay for contraception is not restricted to women who are married. I think this intensifies rather than diminishes the religious freedom concern if the religious believer is asked to subsidize sexual promiscuity to which the believer also objects on religious grounds. This statement as it appears in the abstract should make us realize that the “right” to underwritten protection against the consequences of sexual license is the wake of Eisenstadt v. Baird. And I don’t think that Eisenstadt supports that proposition that anyone has a Constitutional right to contraception that must be paid for one who objects on First Amendment grounds.
"With Religious Liberty for All: A Defense of the Affordable Care Act's Contraception Coverage Mandate"
By Frederick Mark Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young University School of Law
The “contraception mandate” of the
Patient Protection and Affordable Care Act of 2010 poses a
straightforward question for religious liberty jurisprudence: Must
government excuse a believer from complying with
a religiously burdensome law, when doing so would violate the liberty of
others by imposing on them the costs and consequences of religious
beliefs that they do not share? To ask this question is to answer it:
One's religious liberty does not include the right
to interfere with the liberty of others, and thus religious liberty may
not be used by a religious employer to force employees to pay the costs
of anti-contraception beliefs that they do not share.
That the free exercise of religion is fundamental constitutional right is not in doubt. But access to contraceptives is also fundamental. Such access, moreover, is a critical component of the well-being and advancement of women, enabling them to time and space their pregnancies, thereby enhancing their own health (and that of their new-born children) and facilitating their participation in the workforce on more equal terms with men.
Contraception nevertheless remains a significant expense beyond the reach of many women who lack insurance coverage or whose health insurance plans do not cover contraceptives or do so only with substantial patient cost-sharing. This is a financial obstacle to the use of contraception by working-class and lower-income women, and simple economics suggests that women of all but the highest income levels are likely to use contraceptives more often and more consistently when they can obtain them at no cost.
The rhetoric of those challenging the mandate charges federal violation of the free exercise rights of religious employers, usually without mentioning the substantial federal interests in protecting the religious liberty and enlarging the access to contraceptives of employees who do not share their employer’s religious values. The contraception mandate strikes a sensible balance of these competing liberty interests by generally exempting only religious persons and organizations who do not externalize the costs of their religious beliefs and practices onto others who do not share them.
The contraception mandate does not violate the rights of religious employers under either the Religion Clauses of the First Amendment or the Religious Freedom Restoration Act. The mandate is a “religiously neutral, generally applicable” law that does not discriminate against religious employers, does not entangle government in disputes about theology or internal church governance, and does not “substantially” burden the free exercise of religion by nonexempt religious employers. The mandate is additionally justified as the least restrictive means of protecting compelling government interests in public health and gender equity. Finally, while all these conclusions apply fully to religious nonprofit organizations, they apply with special force to religious owners of for-profit businesses operating in commercial markets.
Paper downloadable here.
[MOJ readers might be interested in this] video of this feeding
clinic in Evansville, Indiana https://www.youtube.com/watch?v=pvxbAYmS2XI as
a kind of visual refutation of Friedman's slander against the pro-life
movement—that it does not care for anyone after birth. If we may be so
bold as to suggest that the Catholic church is the largest institutional
pro-life voice in the country, notice the crucifix on the wall, and the name of
the clinic. It's a Catholic hospital. The first formally constituted Catholic hospitals date from at least the early part of the 4th century. Apparently Julian the Apostate was so concerned about these philanthropic enterprises of the Christian church that served everyone, Christian and pagan alike, that he directed that institutions of the empire should be set up to rival them, and
perhaps even undermine them. (https://www.newadvent.org/cathen/07480a.htm)
Plus ca change… The Federal government has been involved in a
serious way in health care for what, maybe less than a century? But we
know no more than 223 years at the conceivable best. Businesses began
providing health insurance to employees in the latter half of the last century
as a competitive market advantage for acquiring labor over competitors. And Tom Friedman only lately heard about sugary drinks from the mayor of New York. All these exemplars of being pro-life. But Christians and the
Catholic Church have been caring for people throughout their lives, feeding
them, clothing them, educating them, visiting them in prisons, comforting them
in death for 2000 years, whether those they cared for were Christians or not.
And Tom Friedman would have the federal government tell Catholic
institutions they aren't Catholic enough or pro-life enough. Nice.