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.