In response to Rick, the answer to the question from my perspective is that a religiously affiliated organization (not a church) could be required to provide insurance that includes all possible medically feasible and advisable treatments. That is a classic, neutral, generally applicable law.
Obviously, abortion is at times a medically feasible and medically advisable treatment. The employer buys an ombnibus insurance plan, and employers, consistent with medical advice and their own religious and personal views, choose what treatments they obtain. That seems to me constitutional. This is not distinguishable from the objections raised by Quakers having to pay taxes that support war or the Amish having to pay into social security that supports a set of relationships they believe are religiously wrong. I'm glad you asked this question, because it seems to indicate that the argument against the ACA at base appears to be that the belief against abortion is somehow more important than other beliefs. I don't see how the Establishment Clause permits that kind of religious belief prioritizing, or any of the free exercise cases either. No employer should be able to exclude blood transfusions, which are abhorrent to Jehovahs Witnesses, from medical coverage. I haven't heard anyone get behind such an exemption. But those opposing the ACA's reproductive health care provisions seem to be suggesting that somehow abortion opposition is a superior belief that deserves extra constitutional protection. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -----Original Message----- From: Marty Lederman <lederman.ma...@gmail.com> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Mon, Oct 1, 2012 1:49 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Rob's thoughts are well worth reading -- he puts his finger on a bunch of questions that are sure to be central to these cases going forward. One caveat on the "equivalence" point raised by Rob and Rick: To the extent the court is rejecting a "proximate cooperation with evil" theory of substantial burden here, then yes, that same theory would presumably be subject to the same objections if the case involved a diocese and elective abortion coverage. But the diocese would have a much stronger substantial burden argument on a different theory -- one of the "institutional autonomy" theories that Rick referred to earlier. In particular, assuming the diocese exercises its title VII exemption, and prefers coreligionists in employment, then I'd assume one of its principal functions -- unlike that of the ceramics-processing O'Brien Industrial Company -- is to create and nurture a particular kind of religious community, one in which its employees are expected to advance its Catholic mission, and to adhere to Catholic tenets in their own conduct. The HHS rule would arguably have a significant impact on the ability of the diocese to so shape its community and to ensure that its employees act in accordance with Catholic precepts. In that respect, the diocese is very differently situated for RFRA purposes from the O'Brien Industrial Company, which hires many non-Catholics and that does not endeavor to require its employees to conform their conduct to Catholic precepts. On Mon, Oct 1, 2012 at 11:57 AM, Rick Garnett <rgarn...@nd.edu> wrote: Dear colleagues, Rob Vischer (St. Thomas – MN) has a reaction – one that identifies well the decision’s many flaws -- to the decision we’re discussing, at the “Mirror of Justice” blog: http://mirrorofjustice.blogs.com/mirrorofjustice/2012/10/forcing-a-church-to-pay-for-its-employees-abortions-would-not-create-a-substantial-burden-on-religio.html As Prof. Vischer reads the decision, its reasoning – i.e., no “substantial burden” -- would apply to a RFRA challenge brought by a Catholic diocese to an exemption-less requirement that the diocese provide insurance coverage for elective abortions. Do those who have been welcoming this decision agree that RFRA would not / should not protect the diocese in such a case? Best, R Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page Blogs: Prawfsblawg Mirror of Justice From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 10:55 AM To: 'Law & Religion issues for Law Academics' Subject: FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Lyng and Bowen involved no regulation of religious behavior. Lee expressly found a burden on free exercise (455 U.S. at 257); the case was decided on compelling interest grounds. None of these cases have any relevance to the burden issue in the ACA cases. And by the way, I think that all three were rightly decided. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 8:34 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Religious groups and their supporters have been trying to water down "substantial" for years. The Alabama rfra doesn't include "substantial" and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups. The court in the ACA case did little more than apply existing law on the interpretation of "substantial." Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate "substantial burden" was to be interpreted according to existing precedents (as of 1993 and 2000)..... In other words, Lyng, Bowen, and Lee are the governing interpretations for RFRA. Subjective views of burden are not part of the doctrine. It would take the Supreme Court to overturn these decisions to grant a win to the religiously affiliated institutions. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
