I think Marty's point about alternative payments in lieu of purchasing insurance with the required coverage is an important one. I don't know how this alternative is structured or characterized in the challenged regulations. But as an abstract matter when we are talking about regulations that require religious individuals or institutions to do something that their religion prohibits them to do, we can often resolve the religious liberty issue by granting an exemption from the obligation (here, the requirement to contract for the insurance coverage) while requiring as a condition to that exemption that the religious individual incur costs or duties of less than or equivalent secular value which would be directed toward some public good that is consistent with their faith (here, contributing the cost of the disputed insurance coverage into a fund to be used for some alternative public purpose.)
This is the model we use for conscientious objection statutes which require the religious pacifist exempt from military service to perform alternative service consistent with his or her religious obligations. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 5:28 PM To: Law & Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" 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.)
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