Thanks for the clarification, Doug. I had missed that particular part of the exchange.
On the distinction you suggest, I think that the characterization of the requirement as "purchasing a package of services" does not fairly describe what's going on here. Or at the very least, this is nothing like what comes to mind when one hears that phrase -- such as the employer hiring a contractor to paint the walls, install new fixtures, etc. The Rule requires the employer to *make available* to its employees a group health plan. (In fact, not even that -- the employer can instead make a payment to the government, a payment that Robin Wilson suggested at our Conference would typically be much *less* than the cost of the employer's portion of the plan premiums.) The law does not even require the employer to pay premiums into the plan, although that might end up being a practical necessity, since the plan must be one that is "affordable" to the employees, which in most cases will presumably not include a plan subsidized entirely by employee premiums. So let's assume for sake of argument that as a practical matter the Rule requires employers to pay a certain premium to the insurance company. (I'm putting aside here the serious question of whether the alternative payment to the Fed changes the burden analysis.) That premium does not pay for a "package of services" *to the employer*. It pays to partly subsidize (in part) an enormously wide range of goods and services -- virtually any related to health -- that will be used only if and when the employees need them and choose to use them. (And even then, the employer will never know which services were used.) That feels to me quite a bit different from an employer "purchasing a package of services." Imagine, for instance, that the Rule instead required employers to pay the same amount of money to a *government* *agency * (rather than to a private insurance company) for the specific purpose of funding a government-provided health insurance plan . . . a plan that works *exactly like the plans in question here*, covering the exact same goods and services, including contraceptive services. In the case of such a Medicare tax -- one that these same employers probably pay currently -- would you describe it as the employer being forced to "purchase a package of services"? Would Catholic employers claim that it forces them to cooperate with evil in a way that their religion forbids? On Mon, Oct 1, 2012 at 8:01 PM, Douglas Laycock <dlayc...@virginia.edu>wrote: > My post on the analogy between exemption from military service and > exemption from abortion was addressed to Marci's claim that there should be > nothing special about objection to abortion. That is a much broader claim > than just the ACA issue. And there are people in the pro-choice movement > pushing against conscience protections for medical providers. > > As to ACA, I do not think there is a burden when an employer pays salary, > and the employee then uses the money for purposes the employer considers > immoral. The salary payments could have been used for anything. > > I think the burden on the taxpayer who pays taxes, knowing that the > government will use the money for purposes the taxpayer considers immoral, > is highly attenuated, and uniformly outweighed by the government's > compelling interest in paying taxes. > > The ACA looks different to those objecting, and plausibly so, because the > money is not paid to the employees or to the government. The employer buys > a package of services that includes the services the employer believes to > be immoral, including the morning-after and week-after pills that the > employer believes sometimes kill human beings. The employer contracts for > those services and pays for those services, and these employers say they > cannot in conscience do those things. > > On Mon, 1 Oct 2012 19:46:50 -0400 > Marty Lederman <lederman.ma...@gmail.com> wrote: > >Fortunately, the question here is far, far removed from whether the state > >can or should require anyone to perform an abortion, or to kill in battle. > >It is, instead, whether the state can require employers to take some of > the > >money they would have used to pay employee salaries, or taxes -- some of > >which would foreseeably have been used to pay for contraception (or even > >abortions, in the case of salaries), anyway -- and instead use it to > >partially subsidize an insurance plan that, like salaries and taxes, is > >used to pay for countless goods and services, some of which involve > >contraception, but only when someone else (the employee) chooses to use it > >for that purpose. (FWIW, I believe the law does not allow HHS to require > >plans to cover abortions, and the Rule therefore does not do so.) > > > >Doug, a couple of your posts here have suggested that even in the cases of > >salaries and taxes being used for contraception, there is a substantial > >burden on the religious exercise of objectors, but one that might be > >overcome by a compelling government interest. For anyone who starts from > >that view, the HHS would certainly raise a harder question. But I am not > >aware of any employer, or Catholic theologian, who takes the view that the > >payment of taxes or salaries is wrongful just because the employer knows > >that they will be put to use for contraception and (in the case of > >salaries) abortions . . . and many other things, besides, that are > wrongful > >in the eyes of the employer. > > > >Thus the question here is whether the state ought to take at face value > the > >assertions of some employers that the moral obligation changes > dramatically > >when the money is used for partial subsidization of an insurance plan, > >rather than for taxes or salaries. I actually think this is a complex > >question, as to which I deeply appreciate the many thoughtful views others > >have contributed to this thread. But whatever the merits of that > >distinction, the case is a far cry from compelling the employer "to kill > >another human being." > > >
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