Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, June 23, 2016

The California Abortion-Mandate Case

California (by order of an administrative agency, not the legislature) has required all insurance companies in the state to include abortion in all health-insurance plans. In particular, it ordered seven commercial insurers (Blue Cross of CA, etc.) to add abortion coverage to their policies that did not already have it. The mandate covers what everyone agrees are abortions; the dispute over whether drugs like Ella or Plan B cause abortions of new embryos is irrelevant here.

There are questions whether the order violated the state administrative procedure act (the agency did not go through notice and comment). But on the substantive questions whether this violates conscience protections, two things happened this week: (1) The US Department of Health and Human Services (HHS) rejected a complaint that that the California order violates the federal Hyde-Weldon Amendment, which prohibits any recipient of federal funds (including a state) from discriminating against a "health care entity," including a "health insurance plan," on the ground that it does not cover abortion. (2) In a federal lawsuit against the state, the district court denied the state's motion to dismiss claims brought by religious organizations alleging that the mandate violates their state and federal constitutional rights of religious freedom. The denial of the motion, of course, simply means that the challenge survives on the pleadings and enters the discovery phase.

Here are some initial thoughts on the case. The California mandate could have a serious effect on the conscience of those opposed to abortion. But there are some complexities in the case that require exploring.

It appears that California has allowed at least one exemption for a plan offered to religious employers. More about that issue in a minute. But first, the main ground for HHS's decision to reject the Hyde-Weldon complaint--a ground that seems incorrect to me.

A. "Plan" versus "Employer"?

In its letter rejecting the Hyde-Weldon complaint and closing its investigation, HHS  says that the "health insurance plan" protected by Hyde-Weldon includes only the insurer who issues the plan, not the employer who maintains it and pays for it. Because the insurers in California did not object to adding abortion coverage, HHS says, Hyde-Weldon is not violated. That reading makes Hyde-Weldon silly and keeps it from accomplishing its goal of protecting conscience on abortion. HHS's position creates a simple end-around by which California and other states can impose on the conscience of thousands of employers simply by ordering that no abortion-excluding plans be available. It is more natural, and more consistent with the Amendment's purpose, to read "health insurance plan" to cover the employer's plan. (For similar reasons, objecting employers should have legal standing to challenge the California mandate; it clearly causes them concrete harm by making plans without abortion coverage unavailable.)
(HHS and the state say that the employer can avoid the imposition on conscience by self-insuring: but that is difficult and complex for many small employers. Just how difficult will probably be an issue emerging in discovery in the litigation. But although self-funding is increasing among small businesses, it still involves taking on risks that many such employers (including, presumably, smaller religious organizations) cannot handle--and reportedly several states, including California, are considering restricting small businesses' capacity to self-insure.)
But even on the premise that Hyde-Weldon only applies to insurers, HHS's reasoning seems wrong. The HHS letter says that Hyde-Weldon protects only those entities that object to abortion coverage, and these insurers didn't object to adding it. But Hyde-Weldon doesn't require a conscientious objection in order to apply: by its terms, it prohibits a federally-funded state from "subject[ing] any individual or institutional health care entity to discrimination on the basis that the health care entity does not provide for, pay for, provide coverage of, or refer for abortions" (emphases added). The trigger for protection is simply that the plan doesn't cover abortion, not that the insurer objects to covering it. Hyde-Weldon seems literally to prohibit California's order to insurers. Following the plain meaning would also protect the moral objections of employers and employees.
B. A Religious-Employer Exemption that Apparently Has Been Granted


The HHS letter (p. 2) says that Blue Cross of CA received authorization from the state to offer a plan to religious employers that excluded elective abortion. But that does not dispose of the case, for at least three reasons:

First, it sounds like the approval may have been a one-off--its availability not made clear to anyone else. 
Second, according to the federal court complaint (paras. 66-67), California authorized a religious-employer plan,  but it covered abortions for rape and incest as well as the mother's life. The plaintiff church, Skyline Wesleyan, objects to paying for abortions in those first two categories.
     The district court opinion (at p. 8) notes this partial exemption, saying: "Plaintiff alleges that Defendants have granted partial exemptions to the coverage requirement to religious employers that request such exemptions but that Defendants have been unwilling to grant any employer the complete exemption that Plaintiff seeks." And the court adds that "In light of Defendants’ system for granting exemptions, the parties may wish to investigate whether they can come to an arrangement that will meet the needs of all stakeholders." Id. n.2 (citing Zubik v. Burwell). Given these facts, California arguably has a practice of "individualized exemptions" that triggers strict Free Exercise Clause scrutiny even under Employment Division v. Smith. (The complaint also mentions some categorical secular exemptions in the underlying state statute, which likewise might be enough to trigger strict scrutiny.) The existence of these exemptions  may also undercut an asserted compelling interest in mandating that every plan cover abortion. (The compelling interest test cannot apply by virtue of a state RFRA, since California does not have one; and the level of scrutiny under California's free exercise clause is uncertain.)


Third and finally, abortion is a serious enough matter for the objector's conscience--the taking of a distinct human life--that even for-profit businesses (at the very least, some) ought to be protected from being forced to cover it. As the Supreme Court said in Burwell v. Hobby Lobby, if the government mandated employers to cover unquestioned abortions (and here, again, there is no dispute they are abortions), "[t]he owners of many closely held corporations could not in good conscience provide such coverage, and thus [the government] would effectively exclude these people from full participation in the economic life of the Nation." (Again, the self-insurance option can be difficult for smaller businesses.)

June 23, 2016 in Berg, Thomas, Current Affairs | Permalink

Sunday, June 5, 2016

Doerflinger: It Was "Tragic" and "Unwise" to Target Pro-Life Democrats

Richard Doerflinger, the longtime director of pro-life activities for the U.S. Catholic bishops, is retiring and has given an interview to the National Catholic Register. In it he reflects on, among other things, lessons learned from the Affordable Care Act's political fallout. As many will remember, pro-life Democrats who had worked for the Stupak Amendment to the ACA (putting the most explicit restrictions on abortion funding), but who ultimately agreed to vote for the non-Stupak version of the law with an executive order on abortion funding, were targeted by pro-life fund-raising groups in the 2010 midterms. All but a few of those Democrats were defeated. Here's Doerflinger:

     In the end, something happened that I thought was very tragic. The Democrats who pushed forward with the Stupak amendment, but then had their arms twisted to support the bill, were targeted in the next election.


     It was a bad vote. But pro-lifers’ decision to target these legislators was unwise. They were pro-life members of the House, a force for our values within the Democrat Party, and you lost them as allies.

Kristen Day of Democrats for Life (on whose board I sit) reacts with points explaining why Doerflinger's recognition is correct, if sadly belated. The destruction of pro-life Democrats, she notes, eliminated the legislators who were the bishops' "natural allies" on the range of issues addressed by Catholic social thought, including "immigration reform, paid maternity leave," and "the social support that is critical to providing fuller support for women and families to choose not to abort their children." Their elimination made the pro-life movement entirely dependent on Republicans, which is turning out to be a very dicey bet as that party flirts, at least at the national level, with self-destruction at worst and (because of demographics) marginalization at best.

Was it worth it? The position apparently was that a vote against the ACA was not only pro-life--despite the various anti-abortion provisions and social supports in the law (which I among others detailed*)--but was so obviously the only possible position for a pro-life legislator to take that those who struck the balance the other way had to be chased out of office. Kristen Day explains why (as DFLA predicted in 2010) that assessment of the ACA and abortion funding has turned out to be far from the case: 

    Conservative pro-lifers were committed to the notion that lines of women would form outside federally funded clinics, eager to wait for their “free” abortions funded by our hard-earned tax dollars.  A Lozier Institute report cautioned that the ACA would swell abortion rates by more than 111,500 federally funded abortions per year.


     Fortunately, the Lozier report was flat-out wrong.  A 2016 Associated Press study indicated that the number of abortions has decreased at an average rate of 12 percent in almost every state.
     The debate on the ACA brought awareness to the number of health insurance plans covering abortion and increased demand for, and awareness of, plans that do not cover abortion.  A majority of health insurance companies and organizations, including the Republican National Committee, covered abortion at that time.  Prior to the ACA, five states restricted abortion coverage in insurance.
     Today, twenty-six states prohibit abortion coverage.  Twenty-one states allow coverage for abortion only in limited circumstances.  Next year, [because of the ACA's own requirements,] every state must provide at least one plan that does not include abortion coverage.  And more families have access to health care.  Only two (both in Alaska) of the 155 multi-state plans cover abortion.
Was targeting the pro-life Democrats for defeat worth it?
* The linked analysis of mine was originally posted in 2010; it has just been reposted on the Democrats for Life website because the original link had broken.--TB

June 5, 2016 in Berg, Thomas, Current Affairs | Permalink

Saturday, May 28, 2016

The Pope Praises Perinatal Hospice Services

Perinatal hospice care has been getting increasing media attention in recent months (including a Washington Post article last month). These programs provide hospice and palliative care for infants who have been born with severe, life-shortening conditions--major anomalies in the brain, kidneys, or other organs--that mean they will live a few minutes, a few hours, a few days, or in some cases a few weeks. Until recently parents who received such a diagnosis prenatally were commonly advised to terminate the pregnancy so they could "start over" as soon as possible. But in the last 15 years, programs have grown up around the country, and elsewhere in the world, that provide services--mostly social and psychological services for the family, along with palliative care for the child--so that parents who determine to give birth in these circumstances can make the most of the brief time with their child. There are a little more than 200 programs in the U.S., many (but definitely not all) housed in the maternity/neonatal facilities of hospitals. You can find a remarkable video about perinatal hospice services here, and a treasure trove of information and resources at perinatalhospice.org.

This week Pope Francis commended the perinatal hospice at Gemelli Hospital in Rome, one of four such programs in Italy, in a message to a conference on perinatal care held at the hospital. According to Vatican Radio, the Pope, among other things, 

expressed his hope for the continued success of the project “in the service of the person and in the progress of medical science, in constant reference to perennial human and Christian values.” He noted [the staff's] efforts in “seeking to respond in the best possible way to the poverty which is the situation of the child with grave pathologies, with the greatest possible love...."

There has been a bit of controversy, noted in the Post article, over state laws that require  doctors giving a prenatal diagnosis of one of these conditions to inform the parents about perinatal hospice options. Any such controversy should not sweep in, or undercut support for, the perinatal hospice programs themselves. Their work, providing vital services to parents who decide to give birth, should appeal to both pro-life and pro-choice people.

May 28, 2016 in Berg, Thomas | Permalink

Friday, May 20, 2016

Methodists Withdraw from Religious Pro-Abortion-Rights Group

This is quite a striking vote, cutting against the trend in which mainline Protestant denominations over the years became  increasingly allied, if only in their policy offices, with the broadest versions of the right to abort.

     Evangelicals celebrated the United Methodist Church’s decision yesterday to leave a pro-choice advocacy group it co-founded 43 years before. 

     At its general conference, delegates voted 425-268 to withdraw from the Religious Coalition for Reproductive Choice (RCRC), an interfaith organization whose broad support extends to late-term and sex-selective abortions—a practice that the church’s social principles “unconditionally reject.”

This is one more data point in the emerging pattern that the ideological middle of the country--which Methodists tend to track--will not accept hard-line pro-abortion-rights positions, even as it increasingly accepts the progressive position on the other major culture war issue of gay rights. The two are very different, and their paths in public opinion charts will increasingly diverge.

May 20, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Sunday, May 8, 2016

Another Book Worth Noting: Stark on Anti-Catholic History

John Inazu's Confident Pluralism, noted by Rick, is a book with an important thesis--hope it gets a lot of attention. 

Another book worth checking out, for which I've just seen a notice, is Rodney Stark's Bearing False Witness: Debunking Centuries of Anti-Catholic History. Stark is an interesting and readable sociologist and historian of religion, who always makes important and generally correct points in his books, even if (in my experience) he may oversimplify or overstate things in places.

May 8, 2016 in Berg, Thomas, Books, Religion | Permalink

Thursday, May 5, 2016

"Partly Acculturated Religious Activity: A Case for Accommodating Religious Non-Profits"

I've posted the above-titled article on SSRN. It's forthcoming in the Notre Dame Law Review, from the excellent symposium that the Review and Rick organized on the 50th anniversary of the Declaration on Religious Freedom. My contribution doesn't mention the Declaration. But it follows in its spirit, since it deals with a crucial question about the ability of religious organizations to have freedom in their public, not just their insular private, activity. The article responds to the claim, growing in strength in the courts and academia, that there should be no legal accommodation for religious organizations in activities where they employ or serve persons outside the faith. (That, of course, was a key premise of the narrow original exception from the HHS contraception mandate.)

I present a defense of a prima facie duty to accommodate what I call "partly acculturated" religious activities, which are "'acculturated in that they reach out to the broader society to provide services of general civic value, but unacculturated in that some of their doctrines and practices clash with dominant secular values [and therefore claim religious freedom protection]." From the abstract:

The law should not force all religious organizations and activities into one of the two polar categories, acculturated or unacculturated. Part II presents several reasons why there is a strong interest in protecting the freedom to engage in partly acculturated religious activity. Among other things, I argue, relying on work in sociology of religion, that refusing accommodation to partly acculturated activity risks losing the distinctive vigor that such organizations offer in providing services to society: their countercultural positions tend to create a sense of identity and commitment, while their acculturation means they apply that identity to serve society rather than withdraw from it.

Accommodating partially acculturated activity does present distinctive challenges because of effects on non-adherents. Part III proposes addressing those, and drawing lines concerning accommodation, by relying on concepts of:(1) notice to employees and clients concerning the organization’s religious identity, and (2) alternative sources of receiving the services or opportunities in question.

And from the article's Conclusion:

Claims for the protection of partly acculturated religious activity present challenges and tensions.  The scope of protection must of course take account of effects that these activities have on non-adherents, whether employees or clients.  But refusing such protection has serious costs.  The opposition to any accommodations for religious activity that affect non-adherents has the effect—and very possibly the aim—of marginalizing organizations that straddle the line between their own members and the broader society.  It will force these organizations to deal only with their own adherents, and play less and less of a role in the broader society, if they want to adhere to their doctrinal beliefs.  For all the reasons above, this would be a bad development: for religious equality, for the vigor of our educational and social service sectors, and for our ability to engage with each other across lines of disagreement.

May 5, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Wednesday, April 27, 2016

Trinity Lutheran Amicus Brief: Religious Persons are Equal Citizens

As many readers know, the Supreme Court is currently considering Trinity Lutheran Church v. Pauley, a case about discrimination against churches in state funding programs. The Religious Liberty Appellate Clinic at St. Thomas, which I supervise, filed an amicus brief on behalf of several church-related groups and other religious organizations.

The case involves exclusion of a church from a Missouri state program that provides funds to non-profit institutions to help them resurface their playgrounds using rubber from recycled tires. Trinity Lutheran Church, which operates a preschool and day-care center, applied for funds because its current playground surface posed dangers to children who fell while playing. The church would have qualified for a grant, but the state excluded it solely because it was a church. Trinity argues that this discrimination against religion violates the Free Exercise Clause.

Here is a passage from our brief that gives the gist of its argument: 

By its exclusion, the state has denied equal treatment with respect to one of government’s core functions: protection of the safety and health of persons within its jurisdiction. In a real sense, such an exclusion treats religious persons as less than equal citizens – as it would if the state were to deny other safety benefits such as police or fire protection. The children who attend petitioner’s preschool and daycare are entitled to the same eligibility for state safety benefits asare children who attend nonreligious institutions.... When a Lutheran child trips or falls on an “unforgiving” surface, her head injury is no less serious than if she attended a nonreligious private school. 

Luke Kane, J.D. class of 2018, did excellent drafting work on the brief.


April 27, 2016 in Berg, Thomas, Current Affairs | Permalink

Thursday, March 31, 2016

Survey: U.S. Christians Face Intolerance, and Complain Too Much About It

An interesting survey, with implications for how Christians speak in public discourse and in particular how they present claims of religious liberty:

A growing number of Americans believe religious liberty is on the decline and that Christians face growing intolerance in the United States.

They also say American Christians complain too much. In agreement: two out of five evangelicals, both when measured by beliefs and by self-identity.

March 31, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Wednesday, March 16, 2016

Assisted Suicide Bill Tabled in MN

A bill in Minnesota to legalized suicide was tabled by its chief sponsor today after a hearing at which many opponents showed up to warn of dangers from the bill. From the Minneapolis Star-Tribune:

      Another opponent, Kathy Ware, said the legislation sends the wrong message about people who are disabled and depend on others for care. She has a 21-year-old son, Kylen, who is mentally impaired and has cerebral palsy and epilepsy.

      Ware said people seeking life-ending medication in Oregon have cited conditions shared by disabled people, such as being less able to engage in activities, losing dignity or losing control of bodily functions. The last reason particularly upset her....

      As evening closed in, Eaton acknowledged that the matter was too complicated, with too many open questions, to be resolved that day.

     “I don’t want any kind of vote,” she told fellow senators. “We’re not ready for it … it’s abundantly clear.”

Minnesota Citizens Concerned for Life encouraged their members to show up. Charlie Camosy, my fellow board member at Democrats for Life of America, wrote a terrific Star-Tribune op-ed encouraging liberals in particular to oppose the bill, calling assisted suicide "an idea that loses its appeal as it becomes more tangible."

(HT: St. Thomas Law alum Michael Blissenbach)

March 16, 2016 in Berg, Thomas, Current Affairs | Permalink

Wednesday, February 24, 2016

"In the long run ..." (cont'd)

I agree, Marc, Christians must be optimistic "over the truly long run." But the question is, is that only so in the long run in which we are all dead (and resurrected)?

As an ironist, I actually think there's room for optimism before that. (We might be able to open our eyes, see incongruities, and go in a different direction.) But I don't see how a tragedian can think so.

February 24, 2016 in Berg, Thomas, Current Affairs | Permalink