Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, June 28, 2012

Some Brief Initial Thoughts on the Health Care Decision

This morning, in a decision awaited with more anticipation and attention than any other I can remember, the Supreme Court upheld the constitutionality of the requirement in the Affordable Care Act that all individuals purchase health insurance.  The vote on the individual mandate was 5-4, with Chief Justice Roberts providing the key swing vote. 

Although much of the discussion of the individual mandate had focused on Congress’ power under the Commerce Clause, it was Congress’ taxing authority that convinced Justice Roberts of Congress’ power to mandate that individuals purchase insurance.  The Act provides that those who fail to comply with the mandate must make a “shared responsibility payment” to the Federal Government, a “penalty” to be “assessed and collected in the same manner” as tax penalties.  Writing for the majority Justice Roberts wrote, “[o]ur precedent demonstrates that Congress had the power to impose the [individual mandate] under the taxing power, and [the mandate] need not be read to do more than impose a tax. This is sufficient to sustain it.”  He made clear that individuals may choose to pay the tax in lieu of purchasing insurance.  In a concurring opinion, Justice Ginsberg, writing on behalf of herself and for Justices Sotormayor, Breyer and Kagen, indicated that she would uphold the mandate under the Commerce Clause. 

With the survival of the individual mandate, major provisions of the Act, a number of which found support even among those who opposed the individual mandate, remain in place.  Thus, for example, the Act’s requirements that plans may no longer put lifetime limits on essential health benefits or impose limits on pre-existing coverage and must provide for coverage for adult children until age 26 remain in place.  (The Act did not completely survive.  In a 7-2 decision, the Court struck down the provision of the Act forcing states to expand their Medicaid coverage to the poor.  It ruled that the federal government lack the power to terminate Medicaid funds to state who do not wish to expand, but   left open to states the ability to opt into an expanded Medicaid program.)   

Today’s decision is not likely to end the battle over health care.  Foes of the individual mandate will be gearing up in the hope that the November election leads to enough additional Republican votes to cause Congress to repeal the Act.  In addition, there has been a lot of infighting at the state level over implementation of the Act, particularly the establishment at the state level of exchanges through which people buying insurance can get coverage.  Many states have refrained from moving forward with establishing the exchanges, waiting for today’s decision.  It would not be surprising to see the federal government having to step in to manage efforts in cases where the states drag their feet.

And, to move to an issue that we have explored with some frequency on MOJ, the Court’s decision to uphold the Act means that the controversy over the requirement that employers provide contraception coverage for their employees remains a live one.  The statement issued by the USCCB in light of this morning's decision is here.

Update: With thanks to Elizabeth Brown, tehe Cathlic Health Association statement is here

June 28, 2012 in Stabile, Susan | Permalink | TrackBack (0)

Health Care Decision

With Roberts as the swing vote, the individual mandate is upheld and with it the bulk of the Affordable Care Act.  On a 7-2 decision, the court struck down the provision forcing a state expansion of Medicaid.  The decision is here.   I'll share some thoughts later.

June 28, 2012 in Stabile, Susan | Permalink | TrackBack (0)

Tuesday, May 29, 2012

What Are We Doing For Those Being Left Behind

[Cross-posted from Creo en Dios!]

When my friend Richard met me for lunch the other day, he gave me a copy of a book title The Other Wes Moore: One Name, Two Fates. The book will be read by all first-year students at the University of Minnesota – Twin Cities this year, and other members of the university community (which includes my friend Richard) are invited to read it along with them. Richard ha an extra copy and thought I might be interested in reading it. He was right. I finished reading it within 48 hours after our lunch.

The book, written by Wes Moore, tells the story of two boys named Wes Moore, one of whom is that author. Both boys grew up fatherless in Baltimore, both had difficult childhoods, both had trouble with the police. But whereas the author grew up to join the military, graduating college with distinction, become a Rhodes Scholar, a White House Fellow and then a successful business leader, the other is serving a life sentence for felony murder.

The book does not try to explicitly answer the question so many people have asked the author: What made the difference between the two Wes Moore’s? How do we explain how two boys with similar backgrounds and identical names ended up in such radically different places?

There is clearly no one answer to that question. It is no more possible to answer it with respect to these two boys than it is to understand why the lives of some people are easier than others. Why do some seem to get all the breaks and others none? Why does every step seem difficult for some and paved for success for another?

One thing is clear, however. As a society we can and must acknowledge that we need to do a better job than we are doing to be sure that all of our young people are given a chance to make the best decisions possible about what to do with their lives. To make sure that everyone has the opportunity to succeed. That no one is viewed as expendable. That we are providing a good education to everyone, not just those with family resources. That no young person views selling drugs or other crime as their only way to make ends meet.

And each of us has a role to play. Whether it is providing necessary mentoring for young people without reliable adult figures in their lives. Or advocating on behalf of the vulnerable. Of contributing resources to those who do. Or finding some other way to make a difference.

The Compendium of the Social Doctrine of the Church speaks of the need to have the good of all people as it primary goal, reminding us that everyone “has the right to enjoy the conditions of human life brought about by the quest for the common good.” It also advises us of the fact that no one is exempt from cooperating in advancing the common good. Right now, a lot of people are being left behind and we can all do a better job of helping them.

In the book, one boy was given a chance and the other wasn't. My heart rejoices for the Wes Moore who had people who went out of their way to ensure that he has options. And my heart grieves for the Wes Moore who will remain in jail for the rest of his life.

May 29, 2012 in Stabile, Susan | Permalink | TrackBack (0)

Sunday, May 27, 2012

School's Out

Not Catholic Legal Theory, but an important reminder:

The school year is coming to an end.  Among other consequences of school being out for summer is that families of thousands of children who receive free or reduced-cost meals during the school year have to replace those meals, which puts increased demand on food shelves around the country.

Although demand at food shelves is highest duing the months of June, July and August, donations are usually at their lowest during the summer.  

So please remember to donate generously to your local food shelves, which usually are happy to receive cash as well as food donations.  

May 27, 2012 in Stabile, Susan | Permalink | TrackBack (0)

Thursday, May 17, 2012

Law School and Being Part of God's Plan

As many readers of Mirror of Justice know, Tom Mengler is leaving UST Law School.  Here is the blog post I wrote this morning on Creo en Dios!, which I thought would be of relevence to many of us here at MOJ.

"Yesterday we had the farewell mass and reception for Tom Mengler, who steps down this month as dean of UST Law School, a position he has held for the last ten years.  Tom is leaving to become the President of St. Mary's University.

"Whenever we say good-bye to someone who has been a good friend, a faithful steward, and a strong leader, we have mixed reactions.  We are grateful for the time we had and wish him or her the best in their new endeavor, but we are sad to see them depart from our midst.  A part of us would like those we love and enjoy working and being with us to always stay with us - particularly those with whom we have been engaged in a joint endeavor.

"Yet, if we are a people committed to follow the call of God, wherever that may lead us, we live with the comings and goings.  We know that the ultimate endeavor is God's and that each of us have a role in God's plan of salvation.  So if we stay true to our call, well then, some of us leave New York to move to Minneapolis. Some leave Minneapolis to move to Texas.  Some go even further afield...I think of my friends Marcia and Doug, who are spending this year in Rwanda, or my friend Aidan, posted in Bolivia.

"The comings and goings can be difficult, but they are made easier by knowing that we are all part of God's plan, and that in that, we are all united, whether physically proximate or not."


May 17, 2012 in Stabile, Susan | Permalink | TrackBack (0)

Tuesday, May 1, 2012

Happy Feast of St. Joseph the Worker

This is a post I wrote on this day a couple of years ago in honor of today's feast day:

Today the Catholic Church celebrates the memorial of St. Joseph the Worker, one of two days in the church calendar on which we honor St. Joseph.  The memorial was instituted by Pope Pius XII, some say in response to Communist-sponsored May day celebrations for workers.  It is a day dedicated to the dignity of labor and to honoring workers.

Work is central to who we are as human persons.  As our friend Randy Lee once put it, "man does not work because he does not have the wealth stored up to be constantly at rest; man works because his dignity is in creating."  <em>Gaudium et spes </em>speaks of work as the means by which humans develop themselves and in <em>Centesimus Annus</em>, Pope John Paul II observed that humans express and fulfill themselves by working.

This view of work stems from our creation in the image of God; created in the image of God, human are called to co-create the world with God.  We participate in the act of creation, we share in God's creative activity, through our work.  

On this day on which we remember St. Joseph the Worker, we pray in a special way for all workers and we pray that we may develop and use the gifts God has given us to do the work to which He has called us.

May 1, 2012 in Stabile, Susan | Permalink | TrackBack (0)

Wednesday, April 25, 2012

Anybody and Everybody

I posted on my personal blog, Creo en Dios!, some thoughts about reactions to the CDF's recent action with relating to women religious in the United States in a post titled "Here Comes Everybody."  I share them here for MOJ readers who might find them of interest:

There have been a lot of articles and other posts over the course of the last week relating to the decision of the Congregation of the Doctrine of the Faith to appoint a bishop to exercise oversight over reforms of the Leadership Conference of Women Religious. The CDF accuses the LCWR of "radical feminism" and "corporate dissent."

Not surprisingly, given the breadth of views within the Catholic Church, there are some who defend the action of the CDF and others who have expressed vehement criticism of the action.

One reaction caused me to pause longer than others. One of my Facebook friends wrote, "These men are not the Church."

As phrased, that is simply wrong. That is to say, the CDF alone is not the Church, none of us individually is. But a lot of people and groups fall under this large tent that is the Catholic Church. The parish I left at the end of this past year because it no longer spiritually nourished me, as well as the parish I joined. The people who share my vision of what Catholic social teaching says and the people who have a different understanding of what it means. The CDF and the rest of the institutional hierarchy and every individual Catholic - whether they go regularly to Mass or not. The people who say things that make me want to join hands and walk with them and the people who say things that make me want to cringe. We are ALL the Church.

It upsets me when some "conservative" Catholics (for lack of a better description) want to tell me I'm not the Church, suggesting I go elsewhere if I disagree with them. It upsets me equally when those at the opposite end of the spectrum suggest that those with whom they disagree are not the Church.

There is something to James Joyce' description of the Catholic Church as "Here Comes Everybody," an acknowledgement of the variety of people that make up the Church. An essential aspect of Catholicism is precisely that. I think we would all be better off if people were less quick to suggest that anybody is not part of everybody.


April 25, 2012 in Stabile, Susan | Permalink | Comments (5) | TrackBack (0)

Wednesday, April 18, 2012

Comparison of Obama to Hitler and Stalin

I do not mean to minimize the challenges of religious freedom that exist in our country and there is much constructive work for all of us to be doing to try to preserve a robust notion of religious freedom.

Having said that, I think homilies like Bishop Jenky's, which can be heard here, are both counter-productive and deeply offensive.  Obama's support of the HHS  mandate, albeit raising real issues about lack of respect for religion, is hardly on a par with the behavior of Hitler or Stalin.

We all need to be sure we are ways that others who dont' already agree with us can hear.  This kind of rhetoric does not, in my view, fall into that category.   

April 18, 2012 in Stabile, Susan | Permalink | Comments (7) | TrackBack (0)

Monday, February 6, 2012

Federal vs. State Laws on Contraception Coverage

Rick's post links to the comment letter submitted by the USCCB back in August regarding the (then) proposed regulations as a source for more information about the difference between the HHS regulations and the existing state law.

As I've argued before, I believe the HHS regulations contain too narrow a definition of exempt religious employers. And I don't disagree that the federal mandate is broader than that in most states.  But let me correct one factual inaccuracy in the USCCB letter.

It is incorrect to say that "State contraceptive mandates generally exclude self-insured and ERISA plans."  Because of ERISA's preemption of state law, state laws that mandate coverage are framed as insurance regulations that require that plans sold/purchased in that state provide the coverage.  They are drafted that way precisely so that they avoid preemption by ERISA, which excepts from its preemptive scope laws that regulate insurance.  Thus, if an ERISA plan self-insures, it is not subject to the state mandate.  (That part of the USCCB sentence is correct.)  However, if an employer with an ERISA plan uses insurance, that ERISA plan is subject to the state law contraception mandate contained in its insurance code.


February 6, 2012 in Stabile, Susan | Permalink | TrackBack (0)

Friday, January 6, 2012

The Church in Minnesota and the Marriage Amendment

As many people doubtless are aware, there will be an amendment on the ballot in Minnesota this November to amend the state constitution to define marriage as the union of one man and one woman. Minnesotans appear to be deeply divided on the issue; a poll conducted in November found 48 percent of Minnesotans in favor and 43 percent opposed to it.

In the Twin Cities, Archbishop Neinstedt has been strongly supporting the amendment. In October 2010 he sent a video to all Catholic households in Minnesota advocating for the amendment. (Rob discussed reaction to that here.) Over the past several months he has taken a number of steps, including directing parishes to appoint committees to garner support for the initiative and proposing a prayer to be read at all masses for the passage of the amendment.

Most recently, the Archbishop sent a letter to the priests and deacons of the Archdiocese reiterating the importance of supporting the amendment and stating his expectation that priests and deacons who have personal reservations on the issue not express those publicly. In relevent part it reads:

It is my expectation that all the priests and deacons in this Archdiocese will support this venture and cooperate with us in the important efforts that lie ahead. The gravity of this struggle, and the radical consequences of inaction propels me to place a solemn charge upon you all — on your ordination day, you made a promise to promote and defend all that the Church teaches. I call upon that promise in this effort to defend marriage. There ought not be open dissension on this issue. If any have personal reservations, I do not wish that they be shared publicly. If anyone believes in conscience that he cannot cooperate, I want him to contact me directly and I will plan to respond personally.

Not surprisingly, there has been some criticism of the Archbishop's letter to priests and deacons.  Whatever else one thinks, the reference to ordination vows to defend Church teaching equates one's position on whether the State constitution should be amended with Church doctrine.  Church teaching on marriage is clear, but is it really self-evident that whether the state constitution be amended is a matter of Church doctrine?  

January 6, 2012 in Stabile, Susan | Permalink | Comments (16) | TrackBack (0)