I agree that there have been few if any cases so far of firings for using contraceptives. Ironically there have been firings for becoming pregnant out of wedlock-- if you will, for NOT using contraceptives. However past experience has shown that as these things become public issues, religious employers tend to raise questions about practices they overlooked before. Before the dust-up over the Obamacare contraceptive mandate, a number of employers who now object to the mandate were carrying insurance that covered contraceptives. But that became a position difficult to maintain once a spotlight was placed on it. Since some methods of contraception (certain IUD's for example, as well as emergency contraception) are seen by objectors as abortifacients, it may well be difficult for those attempting to maintain religious purity to overlook employee use of these. And particularly for objectors who do not oppose artificial contraception that always operates before fertilization (i.e. which are not seen as abortifacients), the privacy issue becomes more salient. For then the employer will not only need to discover whether the employee is using contraceptives, but will need to determine which kinds they are using. That is certainly an unacceptable privacy invasion. ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Laycock, H Douglas (hdl5c) [hd...@virginia.edu] Sent: Thursday, August 25, 2016 9:44 AM To: Law & Religion issues for Law Academics Subject: RE: Risk of job loss to employees who avail themselves of contraception?
I doubt that any one has first-hand knowledge. But I will offer two suppositions with reasonably high confidence. First, the insurer paying for contraception directly should have no greater confidentiality risk than the insurer paying through the insurance plan. I doubt that a second insurance policy would be any different, but the government has strongly resisted that in any event. Second, I have never heard of a religious employer firing someone for using contraception. If they started doing that, who would they have left? They couldn’t staff their facilities. I have heard about firings over in vitro fertilization (where the Church believes that discarded embryos are human beings who are killed), and over same-sex marriages. But not over contraception. My failure to hear about it doesn’t mean it’s never happened. But it is surely rare. 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 Case, Mary Anne Sent: Wednesday, August 24, 2016 11:24 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Risk of job loss to employees who avail themselves of contraception? As the quixotic quest for less restrictive alternatives to the contraception mandate accommodation proposed by the Obama Administration continues, am I right to think that, from the perspective of the employee contraceptive users, a concern has to be confidentiality because, to the extent their employer is a religious non-profit opposed to contraception, they risk being fired should it become known they are, through their use of contraceptives, not living up to the tenets of their employer’s religion? I have seen no explicit discussion of the effect of a less seamless coverage (for example through a separate policy or card such as favored by Justice Alito in oral argument) on confidentiality. Is there one? And if there is not one, is that because a) confidentiality can be legally and practically assured to the same extent in any event or b) because, to the extent it is legal to require these employees to abide by Church prohibitions on contraception, factoring into the feasibility of an alternative to the accommodation the degree to which the alternative facilitates deceiving the employer is not something that can openly and properly be discussed? Please forgive my ignorance if the answers to these questions are obvious.
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