Contraception, Catholics, Compulsion, and Compelling Interests


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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165 Responses

  1. Didn’t the EEOC rule in 2000 that employers, including religious institutions, who offered prescription drugs but didn’t include birth control a violation of Title 7 of the Civil Rights Act? Federal courts have held up that decision, how would this be any different?Report

    • Avatar Burt Likko in reply to David Phillippe says:

      I’m not aware of that ruling or courts upholding it. Doesn’t mean it doesn’t exist — I didn’t research for it is all. Do you have a citation or a case name?Report

      • I’m specifically thinking of Erickson v. Bartell Drug Co. , whereby the court ruled that employers cannot exclude contraception coverage if they offer health insurance that contains comprehensive prescription drug coverage. From the ruling: “Title VII does not require employers to offer any particular type or category of benefit. However, when an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes.” Anyway, they found this to be applicable for employers with 15 or more employees. It was also the threat of legal action, based on the EEOC ruling, that resulted in DePaul University allowing contraception coverage in it’s health insurance plans. This kind of thing dovetails with my understanding that faith-based employers can discriminate on the basis of religion, but not necessarily on the basis of gender.Report

      • You could also look at a California case, Catholic Charities v. Superior Court of California, which specifically and directly addressed a State mandate for a secular arm of the Catholic Church to obey a mandate imposed on all other employers and cover women’s pharmaceutical contraceptives in a manner identical to other pharmaceuticals on Title VII grounds.  It cites the EEOC decision directly, and refutes the strict scrutiny argument of Sherbert and concludes

         As we shall explain, the strict scrutiny test does not apply to prescription contraceptive coverage statutes at issue in this case because they are otherwise valid and constitutional laws, which are generally applicable and neutral with respect to religion.


        • This is a case I knew of. It applies state law, not Federal, but did address the Sherbert issue. Importantly, under California state law, the question of what is a religious entity is well-defined; to be a “religious employer,” and thus be excluded from the state mandate of including contraception coverage, the entity must meet all four of these criteria:

          (A) The inculcation of religious values is the purpose of the entity.

          (B) The entity primarily employs persons who share the religious tenets of the entity. 

          (C) The entity serves primarily persons who share the religious tenets of the entity. 

          (D) The entity is a nonprofit organization pursuant to Section 6033(a)(2)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.

          Despite its name, Catholic Charities of Sacramento could not meet even a single prong of that test. Since it was not a “religious employer” as that term was defined, it had to obey the law and provide contraception coverage. The Court of Appeal left unanswered the issue of whether some kind of strict scrutiny test would apply to an entity that could meet the test.

          Were such a test part of the Federal law, I think you’d be on to something here. I suspect that Georgetown Medical Center is a lot more like Catholic Charities than the Archdioscese of Washington so it would be vulnerable to a test like this if such a test exists. But to my knowledge, Federal law is less specific about what a “religious employer” or a “church” is than the California state law test above.Report

  2. Avatar DarrenG says:

    I’m not sure that the RCC stance on birth control is as unassailable as you suggest, given the large number of US Catholics that report using birth control and the near-total lack of sanctions from the church for doing so.

    I’m also in complete disagreement about promotion of a functioning health care system being a compelling good. Your Medicare analogy is apt. It would take a seriously radical court to conclude the federal government has no compelling interest there.Report

    • Avatar Teacher in reply to DarrenG says:


      Happy with Two Kids

      Raised Catholic

      Parents were happy with two kids

      Though it raises a question:  What percentage of a religious group has to hold a particular faith based tennant before it is decided that the “group” does?  Do they need to have just the elders?  66.7% of members?  If one Cardinal decides that Catholics shouldn’t eat meat EVER does that mean that all Catholic hospitals can only offer meatless menus?Report

    • Avatar Burt Likko in reply to DarrenG says:

      I perceive a difference (as it appears you do) between the doctrines of the RCC and the day-to-day practices of the typical Catholic. That most Catholics disregard this doctrine does not render the institution’s belief in the doctrine insincere.

      I’m also not going to debate the concept that healthcare is important. But I don’t perceive it as vital to the survival of the country. We had a nation without any form of national health care until 1965. We still only have half a loaf. If Medicare were repealed tomorrow and replaced with nothing, there would be profound negative consequences, but we would not dissolve into civil war nor render ourselves vulnerable to invasion by Canada or China.Report

      • Avatar Dan Miller in reply to Burt Likko says:

        I obviously couldn’t back this up with facts, but I disagree with your last sentence.  There’s a reason the New Deal got its start when it did, and there’s a reason that every single advanced country has a welfare state of some form or another.  Past a certain point of wealth, not having one becomes simply intolerable.Report

  3. Avatar BSK says:

    I don’t like the idea that a plaintiff has to prove a belief to be sincere, because it allows the courts to de facto decide what constitute legitimate and illegitimate religious beliefs. If I insist that my belief is sincere, what ground does any government have to say otherwise?Report

    • Avatar Burt Likko in reply to BSK says:

      As a practical matter, in nearly every substantial Free Exercise case I’ve ever been aware of, the government concedes the sincerity of belief issue at the outset; I’m only aware of the government disputing a plaintiff’s sincerity of belief in prisoner rights cases where the claim is something along the lines of “My religion says I can only eat creamy peanut butter and you’re serving me the crunchy kind.”Report

  4. Nob Akimoto Nob Akimoto says:

    The Administration has signalled that it is willing to allow these employers to not directly fund this, by way of instead having insurers provide the contraception, but this is obviously a tissue of cover which those religious employers see through and does not assuage their concerns.

    Is this actually true, though?

    Sister Carol Keehan of the Catholic Health Association (probably the most relevant organization vis this issue) says she’s “very pleased” with the revised ruling. (see: )

    This is something of a quibble, but moving forward…

    I’m not so convinced as you are about the second portion of the Sherbert test being met. In order to do so, you need to be able to actually raise the issue that not offering employer provided health insurance would be an unnecessary burden on the belief, not whether or not requiring health insurance to meet certain standards is a burden on the belief.

    That is to say, you’re already too far along if you assume that the church affiliated organization providing health insurance is a necessity at all. Given that the ratio of employer provided insurance is in fact going down, in addition to the relatively mild assessments that are included for employers who have more than 50 full time employees who make less than 400% of the federal poverty level according to PPACA, I don’t think this is necessarily true at all.

    Could you make the case that Catholic religious organizations that might fall under this penalty be unduly penalized for following religious belief based decisions? Yes.

    Is it likely to be such a substantial burden to meet the test? Unlikely.

    Under the original ruling, the Church affiliated organization would have to 1. stop providing health insurance to full time employees as a benefit, 2. pay all of them less than 400% of Federal Poverty Level in terms of full time compensation. This is where the repeal of the Free Choice Vouchers section of the law becomes problematic, because prior to repeal, IIRC an employer could actually get an exemption to the requirement to provide insurance by providing an equivalent amount of between 8-9% of monthly income as a support voucher for purchasing of health insurance on the exchanges.

    In general I’m not sure this is all enough to count as an enormous burden. But perhaps I’m wrong.Report

    • Avatar Burt Likko in reply to Nob Akimoto says:

      But isn’t it the case under PPACA that at some point, an employer the size of a hospital will be required to offer its employees health care?

      This, by the way, strikes me as the best argument offered against the OP in these comments.Report

      • Nob Akimoto Nob Akimoto in reply to Burt Likko says:

        As far as I’m aware there’s no actual requirement that an employer provide health insurance coverage, so long as they’re willing to continue paying the large employer assessment (which would work out to about $2,000 per employee over the 30th employee eligible for a premium credit in the healthcare exchange). And IIRC even this is avoidable by providing a high deductible/HSA.Report

      • Nob Akimoto Nob Akimoto in reply to Burt Likko says:

        So looking at this a bit more closely.

        Some points:

        1. Large employers are exempt from the exchanges until 2017. At this point they can participate in the healthcare exchanges. At this point they can then simply offer to provide their employees participation in the exchanges at a particular tier where they’re willing to choose a plan that fits their lifestyle. (Of course none of these plans would “offer” contraception coverage in the text. But if requested the insurance company would be required to provide it for free.)

        2. The assessment only applies per employee eligible for premium credit on the healthcare exchange. This means they must have an annual HOUSEHOLD income of up to 400% of the federal poverty line. This makes it relatively easy to avoid the assessment, or if necessary reduce one’s exposure by simply increasing compensation.

        3. The assessment exempts the first 30 employees who are affected by the assessment for a large employer.

        4. Assessment comes annually. It’s $2000 per employee who qualifies for premium support on the exchanges. Presumably this is to make up for the lack of health insurance coverage.

        Would a premium support of $2000/year be substantial enough to make it less likely for an institution to provide health insurance? I’m not so sure. It might, but it’s a difficult question to assess.Report

  5. Avatar Dan Miller says:

    The question on this side of the test would be whether being required to pay for contraception in an employee health care plan, whether directly or indirectly through a private insurer, imposes a burden on that belief.

    And of course it does.”

    Does it, though? After all, insurance is a form of employee compensation.  The hospitals and universities in question here aren’t paying for anything here, any more than they’re paying for the mortgages of their employees when their employees use their paychecks to make payments.  Employees are free not to use their insurance to get contraceptives, but the employers aren’t paying for it–the employees are using part of their rightfully-earned compensation to acquire it.Report

    • This has been my view so far. Thank you for bringing it up.Report

    • Avatar kenB in reply to Dan Miller says:

      the employers aren’t paying for it–the employees are using part of their rightfully-earned compensation to acquire it.

      Well, it’s more like the employer is being told to give each employee, in lieu of the equivalent in wages, a pack of vouchers that can be redeemed for free birth control pills. And note that even the observant Catholic employees who oppose the use of birth control have to pay for them in this way (or at least the female employees of child-bearing age, depending on how the organization spreads the costs).Report

      • Avatar Dan Miller in reply to kenB says:

        Doesn’t cash count as a voucher that can be redeemed for birth control pills? If Georgetown fired somebody for using birth control, that would be seen as invasive and unpopular, even if it’s constitutional (and I don’t know if it is or not–Burt?).Report

        • Avatar KenB in reply to Dan Miller says:

          Consider three possibilities:
          1: employer must deduct $200 from each female employee’s salary and give her the equivalent supply of birth control instead;
          2: employer must deduct $200 from each female employee’s salary and give her the equivalent supply of vouchers redeemable only for birth control.
          3: employer can leave the $200 as cash compensation and has no control over how it is spent.
          (note $200 was a wild guess, actual amount not important to argument)

          I see more of a distinction between #3 and the other two than I do between #1 and #2.

          But I do think that under this (reasonable) interpretation, it’s the Catholic *employees* that should be upset, not the employers – they’re being forced to buy birth control.Report

          • Nob Akimoto Nob Akimoto in reply to KenB says:

            That would be true if the health insurance ONLY covered birth control…

            But that’s not true.Report

          • Avatar Dan Miller in reply to KenB says:

            But health insurance isn’t only used for birth control–it covers hospital stays, other Rxs, whatever.  Birth control is one choice from a wide menu of uses, just the same as if it were cash.Report

            • Avatar KenB in reply to Dan Miller says:

              Insurers price plans based on coverage. If the plan offers full coverage for birth control, the price of the plan will go up accordingly. That delta is what my $200 figure above was.

              If i’ve missed something and it’s the insurers who have to eat the cost somehow, then you’re right, this wouldn’t be an issue.Report

              • Nob Akimoto Nob Akimoto in reply to KenB says:

                Yeah with the new rules the insurers have to eat the cost of contraceptives. (They accepted this because contraception coverage generally helps lower their costs in the long run)Report

              • Avatar KenB in reply to Nob Akimoto says:

                Ok, i saw that but assumed that the insurers would recoup that cost in the plans they sell to these institutions, even if the plan itself didn’t technically have that coverage. If that’s not allowed and the price tag to the institution doesn’t include that cost then this shouldn’t be a problem.Report

              • Avatar Alan Scott in reply to KenB says:

                Insurers recoup the cost simply by providing the coverage.  Birth control is cheaper than pregnancy care.Report

              • Avatar kenB in reply to Alan Scott says:

                Well, that came up in another thread, and i think it’s a bit more complicated than that — you’d have to determine how different levels of coverage affect usage among the target population (which, bear in mind, largely will not include low-income folks, since they’re less likely to be in a job that includes health care).  To what extent is price preventing people from using birth control, to what extent is birth control usage simplying delaying pregnancy rather than preventing it, how much would incidence of pregnancy go down given the increase in coverage, how much of the savings would the particular insurer expect to capture, etc.  It’s part of the field of medical economics, and health insurers have entire departments working on this stuff.Report

              • Avatar Will Truman in reply to Alan Scott says:

                ;Insurers recoup the cost simply by providing the coverage.  Birth control is cheaper than pregnancy care.

                This is what the administration is saying, but before believing it, I’d like to hear it either from the insurance companies or from employers that have tried to negotiate rates with and without contraception coverage. If true, the latter should be able to say “Yes, there was no cost difference.”

                And if this is true, then it’s a godsend. In fact, it should be available to any employer that wants to do it. Not just the RCC, but Catholic Bob’s Fabrication Plant With Over Fifty Employees.Report

              • Avatar Dan Miller in reply to KenB says:

                I don’t think there’s a difference between insurance and cash, though.  Imagine if a Catholic hospital paid its employees in “Anything but contraceptibucks” (ABCs)–they’re just like regular dollars except that they electronically alert the Pope if you try to use them to buy condoms etc (bear with me here).  If a Catholic hospital paid its employees using this scrip, it would have to raise wages to get people to work there (conversely, if it suddenly introduced them, people would definitely take it as a wage cut).  But only the contraceptive-using employees would be harmed, so everyone else would get a pay bump at no cost.

                Is the church therefore subsidizing contraception by not paying its employees in ABCs? I’d argue not.  Compensation is compensation, and to allow an employer to put any restrictions on it whatsoever is just straight paternalism.  Once you get paid–be it in dollars or insurance–it’s yours.  The employer isn’t responsible for what you do with it.Report

          • Avatar FridayNext in reply to KenB says:

            Why just female? I ask honestly. Doesn’t the RCC have problems with vasectomies as well? Are they part of this discussion?Report

            • Avatar KenB in reply to FridayNext says:

              AFAIK vasectomy coverage isn’t part of the new regs – dunno how catholic institutions have handled that coverage…Report

              • Avatar Burt Likko in reply to KenB says:

                Nor I. I wouldn’t be surprised if they refused coverage for it, though; that would be consistent with the doctrine that sexual congress should be allowed to bear fruit without artificial interference, consistent with God’s benevolent plan for each of us and His injunction that we be fruitful and multiply.

                I personally consider such reasoning to be a steaming load of hooey. But (not addressed at either of you, Friday or KenB) that does not mean I get a right to question the sincerity of a Catholic who feels differently.Report

              • Avatar kenB in reply to Burt Likko says:

                FWIW, I’m not Catholic, just interested in religious freedom issues and inclined to be argumentative.Report

              • Avatar Will Truman in reply to KenB says:

                Vasectomy coverage, in general, is spotty. It’s considered “elective” by some. As far as I know, it is not including in HHS provisions.

                There are at least a couple of arguments on why vasectomies are different from contraception. With a vasectomy, it’s one-and-done. It’s not an ongoing expense. While there are practical arguments that ongoing expenses are precisely what shouldn’t be covered by insurance (which should focus on one-offs), there is another argument that because it’s ongoing, for it to work, you have to keep doing it, and therefore you have to cover not just the cost of a single month of pills, but the overall, which makes it expensive, and thus more subject to needing to be insured.

                The other issue is that there are medical reasons for hormonal birth control that go beyond the contraception capabilities. That is not true for vasectomies.Report

              • “The other issue is that there are medical reasons for hormonal birth control that go beyond the contraception capabilities.”

                This.  Prescriptions say what, not why.Report

        • Avatar Burt Likko in reply to Dan Miller says:

          I’m not aware of any instance of any Catholic hosptial (or university, or other institution) that has actually fired or even disciplined an employee for personally using contraception.

          Were they to do so, this would not implicate the Constitution. It might implicate nondiscrimination laws as a form of sex discrimination, depending on the kind of position held by that former employee.

          But again, I’m not aware of any such instance actually happening.Report

          • Avatar Dan Miller in reply to Burt Likko says:

            OK.  But, if I may be so bold, I’d like to see you address why you think insurance is different from cash compensation.  Why should the church get so exercised about how its employees use compensation, be it insurance or cash? Presumably allowing employees to buy condoms at CVS using their own money would not constitute an undue burden.  So why should allowing them to buy the pill using their own insurance?

            There are ways to enforce this now–for instance, Georgetown could require its female employees to take a drug test to prove they’re not on the pill.  They don’t, and that’s because they don’t see what their employees do with their own cash as any of their business.  So why does it suddenly become their business when the compensation is delivered in a different form?

            Or, alternatively, would you support Georgetown if they actually went down this road? It seems to me that would run into issues of privacy and gender equity that are at least as important as the religious concerns here.Report

  6. Avatar Will Truman says:


    You make a compelling case. Here is something talked about here and there, that you might be better able to shed some light on: What is the difference between The RCC being forced to fund contraception and Catholic Bob being forced to pay taxes that fund contraception? It seems to me that in both cases, you’re expecting someone to pay for something that is against their religion. Both use an intermediary (the insurance company on one side, the government on the other).

    But more to the point, though, what about Catholic Bob’s Car Wash having to kick in for contraception? How is that not a violation of his rights? In your closing, you talk about waivers for religious organizations. What about companies owned by religious men? It’s been explained that it’s just different when it comes to churches, but the metric you’re using, Sherbert v. Verner, was about an individual who belonged to a church, and not a church itself.

    And lastly, what of Nob’s point that the church (or Catholic Bob’s Car Wash) doesn’t actually have to supply contraception, but only have to supply it if they want to provide tax-incentivized health care benefits? They are free to stop providing benefits* and put their employees on the exchanges.

    * – and I believe to provide contraceptionless benefits, though they lose the tax advantages for providing benefits at all.Report

    • Avatar Dan Miller in reply to Will Truman says:

      I’d also like to see the car wash question answered.  There’s definitely a difference between a church, a business, and a church-operated business like a university that doesn’t employ or serve Catholics exclusively.Report

    • Avatar Dbrown in reply to Will Truman says:

      Boy, are all your arguments strawmen. First off, the bob car wash does not pay or provide birth control by the law. The insurance company does and it takes zero money for that purpose from bob so bob does not fund birth control by the law. You are wrong on all points.Report

      • Avatar Dbrown in reply to Dbrown says:

        By the way, taxes are used to kill people all the time – see Iraq and the Afgan issue. So where is your outrage for that?

        Last I checked the so-called moral church and its bishops have no issue with such mass murder. Besides, birth control kills no humans – a cell is not a human at all and only extremist say such nonsense. So, tax money (and I don’t see any being used to fund birth control, by the way – please find the Government agency that provides birth control or who gets this tax money to provide birth control) is used all the time for immoral reasons – fight that battle and I’ll believe you are arguing for morals, not just listening to fake news (called fox news by some) to attack President Obama. The issue of birth control use in this country and the church’s attempt to end it for all was settled long ago in this country.Report

        • Avatar Will Truman in reply to Dbrown says:

          Mr. Brown,

          You’re so hopped up to argue, that you’re arguing with the wrong person. And if you’d read around a bit, you’d see that I am largely defending the HHS ruling. You confuse questions you don’t like (and are therefore stupid) with having taken a policy position you disagree with.Report

      • If Bob owns a carwash and has enough employees that he is required, under ACA, to offer insurance, and that insurance must, by the terms of the ACA, supply contraception, wouldn’t Bob then be required to fund contraception?Report

    • Avatar Burt Likko in reply to Will Truman says:

      Taxes are general obligations used to fund the actions of governments. Mandates are specific obligations imposed by governments on private actors.

      Bob’s Catholic Car Wash is a tougher case, but if Catholic Bob is going to provide health insurance to his employees, I’d not grant him the waiver the same way I’d grant a waiver to St. Mary’s Catholic Hospital. St. Mary’s Catholic Hospital is owned and operated by the RCC itself, in fulfillment of its religious mandate.  Bob’s Catholic Car Wash is a for-profit business that happens to be run by a devout person. The governmental interference with the practice of religion is substantially less direct in the case of Bob’s Catholic Car Wash.Report

      • Avatar Scrooge McDuck in reply to Burt Likko says:

        Taxes are general obligations used to fund the actions of governments. Mandates are specific obligations imposed by governments on private actors.

        So it would appear that the contraception “compromise,” as fig-leafy as it appears, would provide a sufficient veil of separation between the church-owned enterprise and its employee.    I already know that you disagree, but why?

        Also, here’s a twist on the scenario, and I’m interested about how others would weigh in:   the Mormon church owns a majority of the Marrott hotel chain.   Would they have a similar claim to religious exemption as would a Cacholic hospital?   Why (or why not)?   They are both secular in their aims;  does the fact that health care is part of a Christian “mission” make the legal obligation that much tighter?

        How, precisely, does a Jewish or athiest employee of a Catholic-run hospital need to suffer the impact of the religious policies of the secular organization from which he got a job?Report

        • I disagree because the owner of an insurance policy still has substantial control over what happens to premium dollars even after that money is spent. For instance, an owner can elect to cancel coverage and get a refund of unused premium. Large policy owners, moreover, have significance bargaining strength about what is or is not covered.Report

      • St. Mary’s Catholic Hospital is owned and operated by the RCC itself, in fulfillment of its religious mandate.

        This is the point at which this entire debate devolves into question-begging. This is a false statement. St. Mary’s Catholic Hospital has nothing at all to do with the practice of Catholicism. It is one way for Catholics to practice the good works their religion calls them to, but the running of a hospital is no more a Catholic activity than running a soup kitchen or giving a quarter to a panhandler.Report

  7. Avatar Taylor says:

    Isn’t it funny how people with penises conclude birth control is no big deal? When it comes to cocks like BL, women are and always will be cunts.
    After you dump your sperm, it’s the woman’s problem, right?Report

    • Avatar Will Truman in reply to Taylor says:

      Isn’t it funny how people assert moral superiority without reading what the person actually said?

      He didn’t conclude that birth control is no big deal (or that there’s no compelling interest to provide birth control). He concluded that there is no compelling interest for the government to provide *health care* at all.

      Agree with this. Disagree with this. But address what is being said rather than disqualifying his perspective due to the nature of his anatomy.Report

    • Avatar Burt Likko in reply to Taylor says:

      This comment is a good example of an ad hominem (my opinion is worthless because I am male), a non sequitur (who cares what the Constitution says, this MAN is somehow opposed to health care), and a straw man (at no point did I say birth control is “no big deal,” I said that nationalized health care was not a “compelling governmental interest.”)

      FTR, Taylor, I favor contraception. I favor health care reform, at least as a generalized matter (still have doubts about the PPACA specifically). I like the idea of employers providing health insurance to their employees. All other things being equal, I would interpret and enforce the rule more or less as the Obama Administration has done and is actually doing. But all other things are not equal, as I wrote in the OP.Report

    • Avatar Chris in reply to Taylor says:

      I just wanted to say that I found this comment amusing.Report

  8. Avatar Dbrown says:

    Sorry, but you have gone so far over the deep end that you have lost all sight of reality. When you say “requiring employers to provide The Pill to its employees in its health insurance plans?” what does that mean? That employee’s MUST use birth control? Of course not. Nor is the new law forcing any person to provide it – last I check most all major heath providers (read insurance companies) are corporations that by law, must maximize profits for share holders.

    Birth control has been proven to save far more money than they cost so 1) you must then consider corporations as real people with morals based solely based on Roman Catholic beliefs and/or 2) all corporate law needs to be re-written so that corporations can put specific religious beliefs ahead of profits which, if not done, violates corporate policy and the US legal system relating to corporations.

    Fact: the law in no way forces anyone to use birth control nor force anyone (as in person) to provide it. Only that it is covered if and only if the person wants it. Insurance companies do not have morals so this in no way violates corperate freedom – just the opposite. It protects corporate profits which, by law, must be a CEO’s #1 job. Hence,  your arguments both legal and non-legal are ridiculous and not relevant.

    This is not a question of one religious freedom but an attempt by leaders of one religion to control all people who do not agree with their medevil and very deadly point of view.

    By your arguments, Muslim’s and some Jews must be provided single sex access to all medical facilities – otherwise, the State is compromising their religious beliefs. While true by your logic, absurd by any current legal president; may I point out that similar arguments justified Jim Crow laws?

    Any one can refuse to use birth control but no one has the legal right to deny it to those who want it. That is a moral necessity and we left the dark ages a rather long time ago but the church hasn’t. Need I remind you that this church refused to allow an under age child, who was raped by her own father, an abortion? Under your legal definition, the child (under 12) would be forced to carry the child to term, and very possible be injured and could die to protect some hospital’s CEO from having moral issues conflict with said church. That is your idea of religious freedom?Report

    • Avatar Burt Likko in reply to Dbrown says:

      Much of what you say here, and in your comment below, addresses the desirability of contraception and thus constitutes good policy arguments for the inclusion of contraception in health care coverage. As I wrote in response to another comment above above, I agree that it is good policy to include contraception. But this misses the point. My argument does not reach policy considerations, it addresses the Constitution and case law interpreting it.

      By way of analogy, it might be good policy to forcibly take billions of dollars from the bank and investment accounts of hedge fund managers, and distribute that money to people living under the poverty line. But we can’t do that, either, no matter how good a policy it might be, because that would constitute a “taking” of private property which requires compensation to the former owner.

      Similarly, moral failings of the RCC as an institution, and moral failings of particular Catholics both within the clergy and the laity, also miss the point no matter how grave those moral failings are (and there are grave moral failings out there indeed). The point is that the law requires a religious institution to act contrary to its sincere moral beliefs, not that you or I disagree with the moral correctness of those beliefs. For better or for worse, religion enjoys a special Constitutional status in this nation, by way of our most fundamental law.

      IIRC, Catholic hosptials and other similar sorts of operations do not punish their employees for using contraception if they choose to do so on their own. They are not forbidding their employees from using contraception — they are saying “We don’t want to pay for it if they do.” That’s a material difference.

      Also, IIRC, Jews and Muslims — and Christians and atheists and everyone else — already do get sex-segregated hospital rooms in nearly every case, whether in religious hospitals, secular hospitals, or government hospitals.Report

      • Avatar Alan Scott in reply to Burt Likko says:

        Could the church then deduct $200 from the salary of their employees who use birth control, on the theory that the money would be going towards birth control?  Would the sherbert test exempt them from wage laws in the same way it exempts them from the new health-care laws?

        What’s the difference in that case?Report

  9. Avatar Dbrown says:

    By the way, last I checked, giving birth does have a non-zero chance to kill the mother; also, some woman will die if they attempt to give birth. How does a medieval idea get used to force these woman to either 1) Possibly die or 2) Avoid all sex just so men called bishops who have gone to extreme lengths to protected proven pedophile priests and even transferred them to assault other children in other churchs (a small minority of all priests) can have their immoral… I mean morals imposed on all woman?

    Again your legal arguments ONLY accounts for situations where great harm is not done by the the religion that is seeking the given exception. Last I checked the old testament demanded stoning for any adulterer. Then your legal doctrine would permit this? Not a chance. Birth control IS a life or death issue and no church, CEO, or other person has the right to restrict access to those who need it. The law is valid and your counter example is nonsense when the health, safety and lives will be compromised to allow companies to not carry birth control based policies. That does and must trump silly, medieval nonsense.Report

  10. Avatar Burt Likko says:

    I find it interesting that no one has pointed out what half a day’s reflection caused me to consider the biggest flaw in my own argument: why do I assume that the RCC has any rights under the Free Exercise Clause at all? After all, the Constitution recognizes and protects the rights of individual people, not of religious institutions or corporations. The RCC is not an individual person.

    To get around this, we’d need to find a hospital administrator at a Catholic hospital who had a personal religious objection to having to actively participate in the funding of contraception. And at that point, we’re at least a large step closer to the Bob’s Catholic Car Wash scenario raised by Will Truman above.Report

    • Avatar Jaybird in reply to Burt Likko says:

      I’ve been chewing on this and I think it’s because there is a very real sense in that Catholicism *IS* a group activity (it’s in the name!).

      There are two senses to religious activity and they get used pretty interchangably.

      There is the personal 1-on-1 relationship with the Divine (however you want to define that) sort of thing and there is the Organized Religion (that may have nothing to do with the other definition).

      (Now that I think about it, there’s more than a little overlap with the definitions of “marriage” that get thrown around in the gay marriage debate.)Report

    • Nob Akimoto Nob Akimoto in reply to Burt Likko says:

      The Bob’s Catholic Car Wash scenario is irrelevant, because unless Bob has an absolutely enormous car wash, he doesn’t fall under the large employer requirement in PPACA. Nor for that matter would the infamous “Taco Bell” case that the counsel for the Bishops used. In both cases, having less than 50 full time employees, these franchises have no obligation to provide health insurance, and thus wouldn’t be required to provide contraception coverage at all.Report

      • Avatar Dan Miller in reply to Nob Akimoto says:

        A better name for this might be the Dominoes pizza scenario, which IIRC was founded by an extremely conservative Catholic who ended up giving millions to establish a pro-life university in Florida.  One more reason to avoid them, besides their terrible pizza.Report

        • Avatar Burt Likko in reply to Dan Miller says:

          Fair enough. Is mandating contraception coverage different for Domino’s, which is a for-profit company controlled by a devout lay Catholic, than it is for Georgetown Hospital, which is a public charity controlled by Catholic clerics? I think that both distinguishing facets of the contrasting scenarios — for-profit versus charitable, as well as control by laity versus clergy — are at least worthy of contemplation.Report

          • Avatar Michael Drew in reply to Burt Likko says:

            Do you know for a fact that Georgetown Hospitl is controlled by clergy, Burt? I’ve been think about this a lot, and I do think that the question of who controls the institutions in question is quite key here.

            By all means (I think) some of these institutions are controled by clergy, indeed by the high clergy represented by a group like the USCCB, so their view wrt to those institutions is legit.  But my sense is that the state of facts on this is much less clear than the bishops’ high-octane public stance has suggested.  I don’t think we can assume that all “Catholic hospitals” (or universities or other institutions) are in fact controlled by the clergy (or the church), nor indeed that their controlling officials concur with the bishops in having a religious objection to including contraception in their health plans (I thought I read that Georgetown U. Law Center, eg. included it).

            You would agree that this is a significant consideration, then?Report

            • I would. The less Catholic a particular instittution really is, the less I’d be sympathetic to the Sherbert argument and the more I’d be sympathetic to the Administration’s position that “Sorry you don’t like it, but it’s the law.”

              There gets to be a question of how to define an institution’s religious alignment; if its governing body is dominated by the clerical hierarchy that becomes pretty easy, but if it comes down to funding then things could get murky.Report

      • Avatar Burt Likko in reply to Nob Akimoto says:

        Isn’t the threshold 50 employees? There are quite a lot of car washes that have more than 50 employees, if we include the minimum-wage guys doing the bulk of the work. I don’t know if there is an income threshold for those 50 employees, though.Report

      • Catholic Bob’s Car Wash is an example. It could easily be the case that it’s a chain with a number of car washes that are centrally owned.

        Taco Bells may be individually franchised, but it’s often the case that someone who owns one Taco Bell owns a lot of Taco Bells, or some Taco Bells, some Burger Kings, and a host of other restaurants. Half the McDonalds near where I grew up were owned by a single entity.Report

        • IIRC McDonalds actually got a very specific exemption to the requirement under the argument of the franchise system.Report

          • If true, that opens up a different set of questions. A lot of defenders of the mandate are saying “Why should a Jewish employee have to suffer (go without covered contraception) because they work for a Catholic organization?”

            “Why should an employee have to suffer because they work for a franchise?”Report

            • Avatar kenB in reply to Will Truman says:

              I think the flip side of this is (assuming that contraceptive coverage has a nonzero cost and that the employer is functionally passing the cost on to the employee one way or the other), why should a Catholic employee  who objects to contraceptive use be forced to pay for that coverage just because she doesn’t work for a Catholic employer?



              • Avatar sonmi451 in reply to kenB says:

                Then we will end up honoring the most restrictive prescriptions of each and every religion to cater to the whims of each and every religious employees and employers. Might as well declare ourselves a theocracy right now.Report

              • Avatar sonmi451 in reply to sonmi451 says:

                Cynically speaking, I think what we need is for Muslims to start suing and making lots of noises about all sorts of religious exemptions. Then maybe the religious exemptions brigade might starts to think twice about things. Of course it’s despicable to depend on people’s bigotry, but I’m thinking cynically here.Report

    • Avatar Will Truman in reply to Burt Likko says:

      There are, in my view, arguments that the RCC does have a Freedom of Religion protection (though I don’t think this violates it) because it’s administrators hold the position they do. In the same way that Catholic Bob does. Where I do have difficulty, though, is saying that the RCC gets protection that Bob doesn’t. The court case cited here doesn’t particularly help with that because it involves a religious individual rather than a religious entity. I could see an argument that “once you enter the for-profit game, the rules change.”

      Maybe there’s something to that, but nobody is really making that distinction. And telling someone that they can’t start a business (or that they have to keep their business small) does seem like a pretty real imposition. It also brings up the interesting Marriott example mentioned above. I don’t believe that Marriott is majority owned by the church, but it is run by Mormons. And industriousness is a religious tenet, and arguably, a religious expression, to the LDS Church. (On the other hand, the LDS Church doesn’t have a ban on contraception, so it’s moot, but it’s an interesting avenue of inquiry.)Report

    • I had this conversation offline with a friend. We decided, tongue only half-in-cheek, that if corporations are people now, religions probably are too.Report

  11. Avatar Doug Indeap says:

    Here is a contrary opinion, suggesting that Smith provides the better and operative rule and, in any event, upholding the health law under the test of Sherbert and Yoder may be easier than one might think.

  12. Avatar greginak says:

    So the latest is that the R’s in the Senate have pushed a bill to “ensure that health care stakeholders retain the right to provide, purchase, or enroll in health coverage that is consistent with their religious beliefs and moral convictions” Essentially any group can opt out of whatever they want if they say they want to. This is a big hoo rah for more culture war and the R’s obviously believe this is a good fight for them. I can’t see anybody, in good conscience, going as far as the R’s are in the name of religious freedom. However feel free to correct me if I’m wrong.

  13. Avatar Inbred TeaBagger says:

    Jeebus keerist…you goobers are so full of crap. I guess when a priest pays for prescription medicine, how does he know that the money he’s paying to the insurance company isn’t going towards paying for birth control for somebody else insured by that same insurance company? Face it…you assholes will never be happy with Obama, or any other democratic president. Obama could cure cancer and you douchebags would bitch and moan about it. It must suck having to wake up every morning knowing that you have to spend the day looking for some other liberal policy/idea/person to hate, and knowing that every thing you stand for is a lie and your “leaders” are mendacious twats, who will say anything to their ignorant sheep-like followers to get elected. What a pathetic group of sad, sad people. I truly pity you.Report

  14. Avatar Johannes says:

    Well, at the risk of being pedantic, I think that you’ve made the error of treating RFRA and thus Gonzales, as a constitutional rule, when the Court was very clear in its analysis that the decision rested on Congress’s mandate, not that of the Constitution.  So this isn’t a Free Exercise analysis; it’s purely a statutory question.

    The first question is does the ACA requirement at issue trump RFRA?  If not, does the contextual, fact-specific balancing required by the decision in Gonzales tilt in favor of the employer seeking to deny coverage?  (I don’t see the Church as a whole having standing, because it, as well as individual parishes and dioceses, were exempt from square 1.)  There may indeed have been an argument under the original rule that the balance did so tip, at least for  Catholic Universities and Hospitals, who could claim centrality to the mission of inculcating belief and right living (in their view), but under the Administration’s new approach, that argument is a much tougher sell: they aren’t being required to subsidize, provide or facilitate the provision of the coverage.  The insurance company is.  I suppose they have a claim if a sub silent chargeback is attempted, but absent that, I think the interest-balancing tips against them, even if the religious interest can be somehow found to be infringed.

    I’d also question the applicability of Gonzales and RFRA here.  The Court stated in Gonzales that “[u]nder RFRA, the Federal Government may not, as a statutory matter, substantially burden a person’s exercise of religion, ‘even if the burden results from a rule of general applicability.’”  If such a substantial burden is shown, RFRA states, the Government must  “demonstrat[e] that application of the burden to the person—(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”   Gonzales involved a general ban on drug use that had the (probably unintended) effect of outlawing a religious practice.  Here, the regulation would require a third party, not a natural person, provide insurance inclusive of a benefit the morality of which the employer disapproves on religious grounds.  Frankly, that doesn’t sound like a substantial burden to me, and I’d suggest that the compelling interest in women’s health under the ACA would outweigh the wholly incidental burden, which seems pretty much the least restrictive option which would serve the interest, while entirely avoiding any burden.Report

    • Avatar Burt Likko in reply to Johannes says:

      Thanks for the comment. The issue of whether we’re looking at a statutory or a constitutional issue is one I addressed — while Gonzales purported to set aside the Sherbert rule, the Free Exercise clause didn’t go anywhere, and Sherbert remains the only clearly-structured rule out there and it also has a powerful logic of its own because it closely tracks to the standards by which other fundamental rights are ajudicated.

      We know that there are at least some limits to the Free Exercise right. Human sacrifice would be murder no matter how sincere the beliefs in question and even if the victim truly volunteered. A religious institution may require its house of worship to be built in a certain manner but it must still comply with the fire code. At the same time, we cannot say that the only protection given to religious worship is statutory — to do so is not true to the text of the Constitution.

      So even if we say that “Sherbert isn’t the standard by which we judge Free Exercise claims anymore,” we must still find out whether the use of a law in a particular circumstance implicates the practice of a religion, we must still determine whether the use of the law advances a compelling governmental interest, and we must still search for ways to narrowly-tailor the advancement of that governmental interest so as to cause the least intrusion on the fundmanetal right as possible.Report

  15. Avatar Johannes says:

    I appreciate the civil rejoinder. I read the cases as Employment Div. v. Smith making clear that Sherbert is of limited (at best) precedential viability, and Gonzales interpreting the scope of Congress’s effort to reimpose it legislatively. So RFRA, not Free Exercise itself, is what is at play here.
    I think, though, that even under Sherbert, the present Administration proposed reg stands, for the reasons I’ve given in my RFRA analysis.Report

  16. Avatar Underwriterguy says:

    Probably too late on this thread, but I didn’t see any objection to the State requiring a private company to provide a product without remuneration. If the State can require an insurance company to provide contraceptives without either the appropriate premium or sufficient co-pays to cover its costs, what else may the State require of private companies? And don’t trot out the argument that contraception is cheaper than maternity coverage. There is no guarantee that contraceptives provided without cost by the insurance company are not simply substitutes for contraceptives previously purchased by the beneficiary. In that case, no change in the incidence of maternity and an added cost of the drugs or appliances.

    Maybe free autos could be next.Report

  17. Avatar Burt's Muse says:


    One question from a budding legal mind. Assuming RCC can make a constitutional claim (or an individual) hasn’t the Court narrowed its interpretation of the FEC? In particular, The 1990 case case of Employment Division v. Smith, examining a state prohibition on the use of peyote. While this is a case concerns state law and not a federal law the Supreme Court upheld the law despite the drug’s use as part of a religious ritual. Further, the court did not employ the strict scrutiny test. Instead, they held that a “neutral law of general applicability” generally does not implicate the Free Exercise Clause.

    Could it be argued that this law is of “general applicability” such as providing a form of healthcare?

    I realize there may be a difference between a law that prevents a religious act and a law that compels someone to act in contradiction to their sincerely held religious beliefs.

    But then again, hasn’t that been the legal angle this administration has adopted? Compel people to buy health insurance (a service) under the threat of a penalty (even if they do try to couch it under taxation). Similarly, compel a religious party to provide a service or benefit that is against their religious practice. This leads me to ponder…could the government then compel Catholic hospitals to provide actual medical abortion procedures? How is that different than compelling them to provide abortifacients?Report

    • Avatar Burt Likko in reply to Burt's Muse says:

      Yeah, I think that’s a viable argument. I’m not persuaded — I see an implication in the free exercise of religion here, but then again, I thought Smith was wrongly decided and I guess I haven’t dropped that torch yet.

      My big problem with the Smith case has always been how to define a “law of general applicability.” Any law is generally applicable. It’s illegal for me to use peyote for recreation; it’s illegal for a Native American to use it for religious communion. The case that would be really questionable after Smith is Church of Lukumi Babalu Aye v. City of Hialeah (1993) 508 U.S. 520. The Santeria church prevailed in that case because it had facts showing that the city specifically enacted a law against animal cruelty to shut it down. But under the reasoning in Smith, the city could say, “Hey, the Catholics can’t do an animal sacrifice, either.” Now, we’ll likely never reach that point thanks to the RFRA — but if Congress ever repealed the RFRA, I think the Santerians would be S.O.L. because Smith says that a “law of general applicability” like criminalizing cruelty to animals does not ever even implicate the Free Exercise clause; it’s just not a concern at all.

      That can’t be right. If a law imposes a signifciant burden on a legitimate religious practice, we’ve got a Constitutional problem. If Catholics couldn’t dispense communion wafers because a food inspector had not issued a restaurant license to the church, or the deacons hadn’t been certified by the Alcoholic Beveral Control Board to card people before giving them a sip of the Blood of Christ, that would be a problem. Catholics are reasonably politically popular (these days, although that hasn’t always been the case) so these scenarios seem laughably unlikely. But in the world of Constitutional law, we often deal with unlikely hypotheticals — like the Obama Administration commanding a doctor at Georgetown Medical to dispense an abortifacient. So in a non-RFRA world, would you apply the rule of Smith to say that yes, the Health Board could theoretically shut down the ceremony of the Eucharist?

      Alternatively, arguing on behalf  of the government, could you shoehorn it in with the taxation power, as you suggest? “Do this, or you get taxed, $2,000 per employee.” After all, once we’re talking about tax dollars, we’re beyond the realm of religious objections because it’s the government’s money that’s being spent, not yours, and literally no one in the country has standing to object on religous grounds to how tax money is being spent, at least once it reaches the Executive Branch. This, I think, could be a very strong argument indeed. As I’ll point out in a long-planned installment of the Great Cases that I’m now beginning to put together, taxation is in quite a lot of ways the most pervasive and unchecked power in the Constitution over individual behavior.

      But again, if we hypothesize a tax targetted at certain kinds of people (say, employers who refuse to provide contraception coverage) and then make that tax punitively high (say, $75,000 per employee) then are we really in a world of tax policy incentivizing certain kinds of behavior, or have we now crossed some sort of threshold into, say, involuntary servitude, or takings? I don’t know when that line gets crossed, but I believe that there must be such a line.

      I am not aware of any action taken by this Administration to compel a religious entity to perform a service — whether that be a same-sex wedding or an abortion or the dispensation of abortifacients — against its will. I am aware of at least one state court that found a violation of state law in the denial of facilities rental when a church allowed one of its pieces of real property to be classified as a public accomodation so some lawyers made some money and a gay couple got to make a point and some politicians got a talking point. (The church later re-applied for a different kind of permit to re-classify the facility as private, and it can legally exclude gays now, just as Jesus intended, so the universe, or at least that portion of it that’s in New Jersey, is in cosmic harmony once again.) But that was a state court, not a Federal official.Report

      • Avatar James Hanley in reply to Burt Likko says:

        If a law imposes a signifciant burden on a legitimate religious practice, we’ve got a Constitutional problem.

        I agree strongly with this. Although not particularly religious myself, I have been chilled by the commenters on this and the related threads who treat  the concept of a “law of general applicability” as fully dispositive in itself, something against which a religious claim cannot stand; against which, in fact, a religious claim need not even be given cursory consideration.  The disdain for any consideration of the liberty of others, whose views and goals differ from ours, is a most anti-liberal mindset.Report

  18. Avatar Burt Likko says:

    i want to take a moment and give some recognition to commenters David Philippe, Nob Akimoto, Doug Indeap, Johannes, Burt’s Muse, and Chris Espinosa. All of them have really got down into the weeds here, done some great research and some really good thinking, and found some very interesting stuff with which to assail the argument in the OP. To the extent I’ve backed off the position staked out in the OP, it’s been in response to the good work done by these great comments.

    Those comments, and the intellectual challenges in them, are exactly the sort of reason that I blog in the first place. Thank you, Gentlemen (or Ladies, one can never be sure). The arguments here have been exactly what arguments are supposed to be — aimed at a search for the truth. I’m much obliged and gratified.

    (Unfortunately not everyone who disagreed with me was able to be as civil, pleasant, or on-point as these commenters were.)Report

    • Avatar Michael Drew in reply to Burt Likko says:

      Burt, I have one question that goes a little past what you claim as your core expertise, but I’m interested in what you think.

      And it is: what do you think is going to happen here?  Given the nonmateriality of Obama’s 2/10 “accommodation,” and especially after the bishops rejected it, I expected this to resume with more or less full force after the weekend.  I certainly expected the president to claim his compromise satisfied enough parties to be able to move on, and indeed enough progressive Catholics seem to have embraced the accommodation so sas to create the impression, for now at lest, of a less-united Catholic front, with the bishops and other conservatives isolated (and indeed flanked by the Congressional GOP now pushing an untenable provision in the House, the bishops’ position on which I am not clear on).  In other words, politically, I think the pressure on Obama has indeed been defused for the moment.  Perhaps it will be built back up by the bishops and other institutions over time, in an effort to force further voluntary concessions, or capitulation, from Obama, but I don’t see that happening in the short term.  So my question is, do you foresee an extended court battle coming on this?

      I don’t know the extent to which you are reconsidering your position on the merits, but for my part it was always clear that, for whatever side I came down on on them, the principles being claimed here (if not actually implicated – that’s to be argued) are of the profoundest import under our Constitution.  It seems to me that if litigation is the method by which this matter is now to be resolved, that the significance of the resulting decisions rival anything that’s been treated by federal courts in the last decades.  It seems unlikely to me that this case wouldn’t be eventually granted cert by SCOTUS and decided.  But I wonder if you agree.

      If you think this case is likely to end up before the high court, are you willing to apply the analysis used here on the merits to a realist prediction of what the court’s decision would be? For example, do you think this is a matter of little dispute (the reason I ask is because you seem to present it that way in the OP), such that it would be decided as easily as the recent Hosanna-Tabor v. EEOC case?  Or would there be significant dissent, and on what basis, do you imagine?

      I guess basically, I just wonder, did you mean this analysis to be understood more or less strictly normatively as to what you find the current law to be based on constitutional text and current SCOTUS construction, or do you mean this analysis to be a claim that the issues here are sufficiently straightforward that what lower courts would do would be essentially a matter of pro forma following of precedent, and that SCOTUS, were it even to take the case, would be overwhelmingly a) likely to analyze it under precedent as you have, and, b) overwhelmingly unlikely to overrule any of the precedent on the basis of the facts and claims here?Report

      • Avatar Michael Drew in reply to Michael Drew says:

        First paragraph was slightly unclear there: I expected this to resume after the weekend with full force via a renewed campaign from the bishops, but if that is happening it doesn’t seem (yet) to be overpowering the other structural political impediments I mentioned to reestablishing a similar level of pressure to what oBama was experiencing by the end of last week (which, we should note, he survived at least temporarily by issuing only an essentially non-substantive concession).Report

      • Avatar Burt Likko in reply to Michael Drew says:

        I think Obama can win this one politically. The reason is that so many Catholics actually use and want contraceptives — and everyone knows it.Report

        • Avatar Patrick Cahalan in reply to Burt Likko says:

          Let me add a wrinkle of nuance to that one:

          If you can’t win this, politically, you have seriously mangled political skills.  This is practically a gimmie.

          Of course, the setup was bad, and everyone screws up, so there’s always the possibility…Report

          • Avatar Michael Drew in reply to Patrick Cahalan says:

            I honestly think this was a massive fish-up by the Secretary and her lawyers, both politically and legal-analytically. (Though perhaps it’s ultimately a winner politically.)  If handling a telegraphed, planned departmental rule-write-in from health legislation passed under your own aegis without roping in the president personally to defuse a political furore over the botching of same is not what you have an HHS Secretary for, then I don’t know what you have one for.  Sebelius FAIL.  Strictly speaking, that means Obama FAIL too of course, but as a functional matter I think Sebelius just botched this.  This was her job – her moment – and she dropped the ball.  her absence from the public spotlight trying to explain what the fish was going on last week was, I thought, extremely telling.Report

        • Avatar Michael Drew in reply to Burt Likko says:

          Does winning it politically mean that everyone drops all their lawsuits?  Because if not, my only question was, what happens to them?  Are they going somewhere?  If so, is it clear that lower federal courts will find against the administration?  If that were to happen, from my read, I think they would appeal to SCOTUS, not accept the outcome (but I could be wrong about that – is that what you think?)? If I’m right about that, is your view that SCOTUS would simply leave this alone if the lower courts found against the admin?  Or that if it granted cert it would overwhelming affirm such decisions?  Or what?  Because Obama can win politically, but unless that means everyone gives up and goes home something has to happen with the lawsuits that have gotten filed.Report

          • That’s what I mean. He can find a bone to throw at them, and they’ll accept a compromise somehow. So it never gets to SCOTUS.Report

            • Avatar Will Truman in reply to Burt Likko says:

              Didn’t he already try that?Report

            • Avatar Tom Van Dyke in reply to Burt Likko says:

              Better that Obama goes away and this issue with him.  He deserves to lose re-election over this stunt.

              “Among Catholics, only 28 percent believe religions organizations should be required to implement rules that conflict with church doctrine. Sixty-five percent are opposed. This is true even though many Catholics disagree with church teachings on birth control,” said Rasmussen.

              I’ll stipulate Rasmussen as an outlier on these things, but I doubt he’s identified a phenomenon that doesn’t really exist.  I likewise find meself defending the fundies and creationists although I am neither.  It’s a liberty issue, as protected by the 1st A.Report

            • Avatar Michael Drew in reply to Burt Likko says:

              Okay, gotcha.  I have my doubts.  This is not a matter of horse trading for the bishops – either the policy is acceptable or it isn’t, and they have determined that what is on offer is insufficient.  TVD has assured me they own at least some of these institutions, so ultimately i think they’ll be able to file suit themselves (though in practice I think it’s a matter of their prevailing on others to maintain their suits). And I think those suits will be  quite well-founded, if not ultimately vindicated – in other words, if maintained, I think they’re headed for Appellate-level courts at least.  So to be clear, what you’re saying is that you think it doesn’t get that far – that ultimately enough will be given to the Church to get them to accept the offer.  But I think that is basically nothing short of the bishops’ opening demand – I think that, whatever we think of their demands on the merits, they’ve been admirably clear all along as to what would give them what they want and what wouldn’t.

              I realize this isn’t necessarily your position per se, but I actually give the bishops enough credit for not f-ing with the president just to do it that I think they actually are unable to accept on principle anything short of basically their initial demand here.  So functionally to say that this is going to get resolved outside of the higher federal courts in my view ends up having to be a claim that capitulation from Obama is still coming down the pike.  But I don’t see the public pressure being applied to get us there any more.  Perhaps it will be resumed, but I’m not sure a court resolution is very much less likely than that at his point.

              That’s why I ask.  I think it’s still capitulation or litigation and that’s it, and we seem to be at a very uneasy stage of indeterminacy between them right now, or so it seems to me.Report

      • Avatar Jeff in reply to Michael Drew says:

        What happened (from my perspective) was that, after the “not-concession”, the bishops said “Not good enough!”  Enough people, including promenent Catholics, said, “Then this ISN’T about paying for birth control — it’s only about CONTROLLING birth control (like we said it was).  And you can’t control birth control with your employees, who may have other religious values.”

        Last I heard was that the bishops were “studying” the not-concession, probably to figure out another attack that keeps the fig leaf of “religious persecution”.

        In other words, they got outed as hypocritical liars, and I couldn’t be happier.

        I think their reaction may void whatever legal action they might have taken.Report

  19. Avatar Johannes says:

    Many thanks for the kind words, and it’s a pleasure to engage with you, too. I’m mulling your reply based on the wrongness of Smith, and see some merit in it, in that the rule can indeed be taken to annihilate bona fide religious practices. On the other hand, application of Sherbert to secular business practice seems to show that deision too cannot stand as an absolute. As a long term opponent of balancing tests in constitutional analysis, this has me uncomfortable, which means you have me thinking.Report

  20. Avatar Burt's Muse says:


    Thanks for the supportive comment. I found your blog and a majority of those who have contributed as “enlightening.” I have been typing this out on a 3.5 inch iPhone so please excuse the lack of grammar. Lol

    In response to your answer, I agree with your characterization of Lukumi. However, I see Lukumi as a specific carve out for explicit (or implicit) evidence of a law to target a practice. In other words, had they not been able to show such blantent intent then the decision may have been on the side of “general applicability.” Really, a specific case of the government trying to circumvent the true meaning of the ruling by masquerading it as a law to protect animals that miraculously seemed to coincide with their religious practice.

    Again, what I find interesting is that most of these cases (if not all) deal with the government attempting to prevent the practice of religion. I’m not sure if there is a distinct difference as it relates to the FEC, but on its face any law that compels an individual or group to “do something”(as it relates to the exercise of religion) sends a slightly different chill up my spine. I think it is because most challenges originate from being prevented from practicing a religious belief.

    To clarify my statements on compelling one to purchase healthcare, I was referring to the administrations change in position. In particular, it is my understanding that they realized a real constitution challenge on a punitive levy for uninsured citizens. In order to combat this they wanted to write the punitive portion of the law into a tax. In doing so they can use the constitution under the “power to tax” which they felt would be untouched by SCOTUS. One small problem is that the record likely shows this was implemented specifically to avoid the constitutional claim and it is unclear how SCOTUS will address what might be considered a blantent attempt to usurp a constitutional question. In other words, if you consider the true intent of the law…and explicit evidence to counter the sincerity of the taxation angle, SCOTUS might not take kindly. In fact, I believe the early arguments of the administration stated it was not a tax. But I digress.

    I did find your comments on communion interesting. I agree this would be an even more blantent intrusion. I think to the average lay person they would think that was more clearly a problem. I think hypothetically, it raises a good point about the narrowing of FEC under Smith. I also think that is why the more recent attempt to narrow is inappropriate. I would still like to point out that the communion example is another example of government attempting to prevent an act where the current contraception dispute is more along the lines of a compelling act.

    It seems the act of preventing an act is still not fully worked out. Even scarier that cases concerning compelling one to act are barely on the radar.

    In short, I agree that they should adopt the Sherbert approach. However, I do see a gate keeping function that allows courts to weed out absurd FEC claims. No pun intended. Really. I’m ok with some claims just not the wild undocumented way out there made up ones from any individual that wants to just make things up and try to argue FEC.

    Then again. Who am I to tell someone what to believe or practice?Report

  21. Avatar Jeff says:

    I have a question, which I will try to phrase with as little bias as possible.  Let us suppose that there is a Christian hospital (“C”).  The nearest secular hospital to C is 80 miles away.  A pregant woman is admitted to C and her doctor believes that she will die if the fetus is not removed.  The fetus will die no matter what.  The woman believes that abortion to save the life of a mother, especially if there is no hope for the fetus, is her God-given right.

    The administration of the hospital forbid the procedure on religious grounds, and force the mother to undertake the risky 80 mile trip to the secular hospital, where the procedure can be performed.

    Whose religious beliefs, the hospital’s or the patient’s, should prevail in this case?

    This is based on an actual incident:

    • Avatar Will Truman in reply to Jeff says:

      There is a legitimate question here that if not for C, would there even be a hospital. In ruralia, the lack of hospitals is a problem. So, even putting aside Freedom of Conscience, you have to ask yourself what happens if you require hospitals that are the only hospitals within a certain radius to provide certain services. If the answer is that (a) secular hospitals would pop up or (b) Catholic hospitals would cave, then maybe you go forward with it.

      This is, to me, the last resort, though. Not something we use to justify situations where there are other alternatives available. I am actually (sort of, mostly?) with the administration on the HHS mandate in good part because there is another option available (the exchanges). But I wouldn’t want this scenario to be used to justify forcing hospitals to provide abortion services, for instance. Nobody is talking about that at present, but the justification (we can’t have FoC if there are adverse consequences) fits.


      • Avatar Tom Van Dyke in reply to Will Truman says:

        I think I agree w/ WillT if he’s saying it’s not better there’s no Catholic hospital atall, self-shuttered because Obama tried to force them into actions they found morally unacceptable.Report

        • Avatar Patrick Cahalan in reply to Tom Van Dyke says:

          Well, Tom, this is one case where disagreeable consequences may deserve more light than not.

          You know, the dog poops in the yard and you shove his nose in it (disclaimer: yes, I know this doesn’t work for dogs).

          If (if) it follows from a political philosophy that “this thing” is something that should be regarded as a right and “this thing” is something that is currently being provided by a non-governmental entity and we decide that we don’t want “this thing” but “this other thing that’s different enough that the NGE doesn’t want to do it”… well, if the NGE involved says, “Buh-bye!” then the people insisting on the change are suddenly stuck trying to figure out a solution to their problem other than “browbeat the NGE into doing it.”

          In a way, Democrats are protected from some of the consequences of their policy ideas by not having to bear them all (note: this applies to the GOP, too, lest JHG pop into this thread and assume I’m a con again).

          If you decide that “health care” (for some definition of “health care”) is a right, then you’re kind of stuck figuring out a way to provide that “health care”, or adjusting your definition of “health care” such that it is provided.  If you can’t do that, you have something of a quandary.Report

          • PatC, society—the nation—benefits from the Catholics doing their health care thing, the only hospital for 80 miles, a golden goose as it were.

            So you force it out of business with this contraception thing, an arbitrary piece of ideology?  Spiteful.  Stupid.

            [The case that free contraception is a necessary part of “women’s health” is specious at best.]

            As somebody mentioned, how about the Catholic Church dumps the 300,000 NYC kids it educates on Bloomberg’s lap?  The golden goose has had enough.

            There’s not a lot of good sense going on in this thing, and neither is this just some test of wills.  The contraception thing [the “theology of the body“] is fairly central to the Roman church’s theology, and for the secular sphere to mess with it is not only unwise, it’s of questionable constitutionality.Report

            • [The case that free contraception is a necessary part of “women’s health” is specious at best.]

              This entire conversation has long since passed the point of pure skin-crawling horror. One almost sympathizes with Sady Doyle.Report

              • I don’t blame you for not attempting to defend your sentiment, Ryan.  Words like “necessary” have meaning.

                Even if ’twere necessary, on a practical level, there’s no reason the gov’t must stick the Roman church with the bill.  Or the health insurer, either, that they must provide contraceptives “for free.”  There is no “free.”

                No, the important thing here is to muscle the Roman church into submission.  The rest follows.


              • I’m all for making the government foot the bill directly, but that wasn’t quite the point I was making.Report

              • Ryan, is there a necessary difference between oral contraceptives and condoms?  If not, the Roman church should buy condoms too.

                And if I do understand your point—and it’s highly likely I do, it’s not entirely subtle or sub rosa—by your own lights and reasoning, the arguments for compelling the Church to buy oral contraceptives would apply to abortions as well.

                The contraceptives thing is the nose under the tent, for its arguments can easily be expanded to include all sorts of things.Report

              • A) Uh, yes, there is a major difference. Perhaps you are not a woman and you don’t understand that, but it might behoove you to ask.

                B) Again, not the argument I was making. I was merely pointing out that you’re a misogynist dick. I’m done arguing the merits.

                C) I think, if it were decided through the democratic process, that abortion were part of a properly-defined package of health care, it would be kosher to require employers to provide coverage for it. As long as we respect the pre-existing exemption for churches (although I’m not sure I believe that’s a particularly strongly-defended exemption either).Report

              • Then I understood you quite damn well, Ryan, and your slippery slope to abortion is no mere speculation.  Thx for the insult as well.  Sorry for ruining your drive-by, but it’s good you exposed yourself.Report

  22. Avatar Burt's Muse says:


    I would say that if that is the opinion of her doctor then her doctor is responsible. Regardless, I don’t think any hospital is compelled to do anything. Any facility can determine the types of services they choose to render. In fact, I think physicians can refuse care for any procedure they are either untrained or find morally objectionable. You simply cannot force someone to perform an act they do not agree with. I believe that even medical students and residents in obstetrics are not compelled to perform abortive procedures if they object.

    I think something that gets lost in these arguments is that nobody is denying contraception to women. If you prefer to work for an employer that does not include coverage for family planning that is your choice. You don’t have to work for a religious based hospital, charity or school. You are perfectly welcome to go to any doctor and receive a prescription for contraception and purchase it yourself. We all have the freedom to chose our employer. At your interview, if you don’t get coverage for contraception you can choose to work elsewhere. Some don’t get dental or options or pensions or maybe less of a contribution to a retirement fund. On this point, please don’t run wild with examples that theoretically just prop straw men. I am not saying that discrimination based on race would be acceptable.

    Further, I think that another way to look at this is related to why these religious groups are in these businesses. They see these services as a “witness” or the act of carrying out good works by commandment of their beliefs and faith. I think this is a reasonable argument for the fact that they should be treated more like a church or church function, (which are currently and traditionally been exempt) rather than purely a business.

    Big question is still the idea of compelling someone to provide a service or purchase a service for that matter.Report

    • Muse,

      For what it’s worth, my wife is a physician with extensive obstetrical training and a philosophical problem with performing abortions (and a husband that would have a problem with her doing so). So when you talk about forcing doctors to do abortions, believe me when I tell you that is something I have thought a lot about (along the lines of a slippery slope).

      Now, I’m not positive if your response was with regard to the HHS mandate, to Jeff’s scenario, or both. So I’ll tackle them one at a time.

      Potential employees do have a choice of where to work. But the Catholic hospitals,  too, have another option: put employees on the insurance exchanges. Or close down the hospital. That last option is undesirable and the state should be very careful about pushing the RCC too far (such as requiring them to perform abortions) for that reason.

      On Jeff’s scenario, a Catholic Hospital still would not have to perform acts it considers abhorrent. It would only have to if it declined a compromising step* or wanted to keep federal funding and tax-exempt status. Of course, if it didn’t can’t stay afloat without federal funds, then it would only have to perform the acts if it wanted to stay open as a hospital. (Note: unless someone else is willing to step in, this would be a Very Bad Outcome and a reason that we should not push the hospitals too far.)

      The extent to which the government can constitutionally force these things is, as yet, undetermined. If the courts say the government can’t, then the government can’t. But to date, the courts have not said that the government can’t.

      * – The “compromising step” I refer to would be to sever the emergency room, one of the ORs, and/or a part of the hospital to a secular enterprise. This is what a hospital that my wife used to work at did. One floor was taken over by the university my wife worked for. That floor was not bound by Catholic rules. No abortions were performed there, but depo shots were given and sterilizations happened. That didn’t satisfy all of the tensions surrounding church rules and secular health care delivery, but it alleviated quite a bit of it.Report

    • Avatar greginak in reply to Burt's Muse says:

      Muse- Its a bit much to just say a woman can simply choose to work someplace else. Jobs are not plentiful nor can anyone have one whenever they choose. If we are talking rural US then jobs are even more scarce. Many/most people have to take what work they can get.

      Muse mentions the specter of forcing docs to perform abortions which nobody is doing or even discussed. In a completely non-hypothetical case in my smallish city we have two hospitals that insurance companies use. One is Catholic, its part of the very big business Providence system. All the insurance companies in town pick one of the two hosp’s to be the preferred provider. As it happens sometimes insurance companies change preferred provider so all of sudden some people ( women in this case) now have their health care options dictated by a religious group who they are not part of. Where does the right of the patient come in to choose her own care given that insurance is how we pay for HC? I’d prefer a national single payer system of some sort but that really isn’t an option now.Report

      • Avatar Will Truman in reply to greginak says:

        Muse mentions the specter of forcing docs to perform abortions which nobody is doing or even discussed.

        Greg, that’s actually what Jeff’s comment is about: whether or not we should force a hospital to perform an abortion. In that case, to possibly save a mother’s life. It may seem to you like mental mastication to think that maybe it wouldn’t stop there (What if it’s mother’s health – but not like – is at risk? What if it’s elective but the doctor is the only one who can perform abortions within a few hours?), but for someone in my wife’s position… it’s not.Report

        • Avatar greginak in reply to Will Truman says:

          Yeah but nobody is proposing forcing hospital to perform abortions against there will. Muse also ruled out using strawman arguments like discriminating against people by race. Seems like taking one extreme that nobody is pushing for and taking it is a real danger while arbitrarily ruling out other dangers that nobody is pushing for.Report

        • Avatar Jeff in reply to Will Truman says:

          I don’t like to ask a hypothetical of a person not here, but since you bring her up…  What would your wife do in the above case, where the fetus will not live regardless, but the mother will definitely die if the pregancy is not terminated?

          When does the Hypocratic Oath override religious belief?  That’s a decision each doctor must weigh themselves, but also consider alternatives for the patient.

          I’d like to see some kind of secular accomodation at ALL Catholic hospitals — so those who need help that the Church is unwilling to provide can get it.  NOTE that this mostly means women, especially poor women.Report

      • Avatar Brandon Berg in reply to greginak says:

        Muse- Its a bit much to just say a woman can simply choose to work someplace else.

        Or she could just, you know, buy her own contraception. I heard about this new benefit that a lot of firms are offering their employees nowaday. It’s called a “salary,” and workers can exchange it for a wide variety of goods and services.

        Really, this whole argument is utterly bizarre. Birth control pills are a regular, predictable, and cheap expense, They has none of the characteristics needed to make them a good candidate for insurance coverage. Forcing employers to provide them makes about as much sense as forcing them to provide food, shelter, and clothing.Report

        • Avatar greginak in reply to Brandon Berg says:

          Insulin is regular and predictable also. So is heart meds. Most medications are regular and predictable and when you buy them on your drug plan they are cheap. Whether or not a woman gets pregnant is pretty darn clearly related to her health and of course BC pills are prescribed for more reasons then just contraception.Report

          • Avatar Murali in reply to greginak says:

            You do know that putting regular predictable stuff on an insurance plan is precisely what makes healthcare costs go through the roof right?Report

            • Avatar Kim in reply to Murali says:

              … cite me. Putting most of our poor through emergency room health care costs a HELL of a lot more to treat NOTHING. $5000, for a deadbeat to show up — and not get treated, cause nothing is Wrong! Course, he says something is wrong, and may even fake a heart attack…

              I’m not in the trenches, but I do work in the biz. And I listen when people talk about what the trenches are like.Report

            • Avatar greginak in reply to Murali says:

              umm no. I don’t believe that is true. Is HC in Canada super expensive or in western europe. I know the Libertarian beliefs on this and i’ve never found them convincing.Report

              • Avatar Chris in reply to greginak says:

                 Is HC in Canada super expensive or in western europe.

                No. In most cases, including Canada, it costs less per person than it does here. One reason is an increased focus on primary and preventative care.Report

              • Avatar Murali in reply to Chris says:

                Dammnit,my reply was eaten up.

                The reason healthcare is cheaper in Canada than in the US is because there are few limits to consumption once you pay your premium in the US, while there are some serious limits to what you can consume even after you have paid (premiums or taxes) in canada.

                One thing that perplexes me is how everyone paying for predictable stuff via insurance is even supposed to contain costs or let alone be cost neutral.

                Presumably, if you were paying out of pocket, it would cost $x. Presumably, if you are a private hospital and want to kepp you balance sheets in the black, you’d want to charge so much for a procedure and not charge less than its cost price (at least on net) What this means is that everything else being equal, if the selling price for a procedure is $x, it is $x regardless of who pays for it. Presumably, if I’m an insurance company, I will still have to pay $x for the procedure. But if I wanted to earn a profit, I would need to bring in $x + $p per procedure in order to make said profit. This would all be fine if only a fraction of the premium payers got the procedure over their lifetime. Then those who didnt get the procedure could subsidise those who did and any insurance subscriber could get away with paying some fraction of $x. If on the other hand it was expected that everyone who had insurance would get the procedure, then in order to break even, the insurance company would have to  get in more than $x.

                On the consumer’s end, once youve paid your premium, there is no point in not consuming. This is especially the case if insurance companies cannot up the premium (for pre-existing conditions) if they find that you tend to consume more. It’s like an all you can eat buffet in the US system. However, the larger the proportion of people consuming, the more the insurance company is going to have to charge in order to maintain their profit margin. And given this system, for profit hospitals have every incentive to not accept patients who pay out of pocket rather than via insurance. They will simply not accept them or, will mark-up the out of pocket price. This will incentivise people to paying via insurance if they arent already and encourage overconsumption.Report

          • Avatar James Hanley in reply to greginak says:

            Whether or not a woman gets pregnant is pretty darn clearly related to her health

            Which way does the arrow of causality point?Report

        • Avatar Kim in reply to Brandon Berg says:

          be glad you live where you do.

          Legal need not mean easy, or available.Report

        • Avatar North in reply to Brandon Berg says:

          I dunno Brandon, 80 bucks a month (which is the amount I hear claimed regularily) doesn’t seem that cheap to me. Also it’s prescription only which means you need to lump in a doctors visit.Report

          • Avatar Kim in reply to North says:

            Cheaper than the $300 a month phexophenadine costs… and that was medically necessary to avoid emergency room visits (not me, but someone I know)Report

          • Avatar DensityDuck in reply to North says:

            “$80 per month”  is off by a factor of ten for birth control pills.  You can get them at Target or Wal-Mart for $8.

            And if it’s the cost, then maybe what needs to happen here is not “mandated birth-control pills” but rather “mandated tax-free HSAs”, to let people choose how they want to spend their money, and with the explicit understanding that if people choose to spend it on birth control then it’s their choice and not an expression of support by the employer.Report

        • Avatar Jeff in reply to Brandon Berg says:

          Preventive medicine and providing regular, predictable medicines keep costs DOWN.  At least in the universe I live in.Report

  23. Avatar John Puma says:

    You will have to establish, for me, the why religion, the temporal institution that promulgates it AND the business affairs of the institution are, apparently, considered equivalent under the law.Report