So how does it work? The women need pre approval from their boss? And I thought the bishops oppose the Pill and these are devout Catholics.
Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:46 PM, "Douglas Laycock" <dlayc...@virginia.edu> wrote: > They are not. > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton > Sent: Wednesday, November 27, 2013 12:32 PM > To: Law & Religion issues for Law Academics > Cc: Law & Religion issues for Law Academics > Subject: Re: Discrimination under Title VII and RFRA (was "Patently > Frivolous") > > Tom-- they are not opposed to the Pill? > > > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > > > On Nov 27, 2013, at 12:16 PM, "Berg, Thomas C." <tcb...@stthomas.edu> wrote: > >> In response to Chip, >> >> As to the plaintiffs in Hobby Lobby and Conestoga, they object only to >> certain medicines/methods that they believe cause abortions of >> fertilized embryos. Unless opposition to abortion is a form of >> statutory sex discrimination, which the Court rejected in Bray v. >> Alexandria Women's Health Center, this element at least complicates >> any argument that sex discrimination is the interest in these cases. >> (The government asserts that abortion is not involved here, for both >> legal and medical reasons, but this at least complicates the >> matter--especially in a case where the question concerns the >> objector's conscientious belief.) >> >> Moreover, as to the Catholic plaintiffs--those opposed to contraception as >> well as abortion--all of the complaints, as I remember, state that >> plaintiffs' object to paying for sterilization as well as for abortion and >> contraception. Presumably they would object to having to pay for >> vasectomies--if the mandate required those, which it apparently does not. >> This article from Kaiser Health News indicates that the relevant parts of >> the mandate only covers preventive services for women. >> http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx >> If this article is wrong, someone please correct me. But it would be >> strange for the government to enforce a regulation covering only services >> for women and then claim that the one who objects to it is engaged in sex >> discrimination (when there is a good likelihood that the moral objections >> would extend to relevant services for males). >> >> There is of course the argument for the importance of contraceptive access >> to women's health, life-planning, and autonomy. The government has made >> that argument strenuously, and we'll see if it succeeds on these facts. But >> it seems to me that going further and framing the issue as sex >> discrimination by the objectors faces problems. >> >> Tom >> >> P.S. here is the relevant passage from the link above: >> >> 1) Are male-based contraceptive methods, such as vasectomies or condoms, >> covered by the rule? >> >> An HHS official said on Friday that women’s preventive services guidelines >> apply to women only. >> >> Guidelines issued by the Health Resources and Services Administration, part >> of HHS, require coverage without cost sharing for "all Food and Drug >> Administration-approved contraceptive methods, sterilization procedures and >> patient education and counseling for all women with reproductive capacity" >> as prescribed by a provider, according to the Federal Register. >> >> The insurers' letter from September says they interpreted the rule to >> include only female-based contraception and that the requirement to waive >> co-payments "does not apply to methods and procedures intended for males." >> >> But Adam Sonfield, senior public policy associate at the Guttmacher >> Institute, a reproductive health research group, says the language is >> unclear, and it would be foolish to exclude vasectomies. For one thing, he >> says, they are less expensive and pose a lower risk of complications than >> female surgical sterilization methods. Plus, he says, waiving co-payments >> for services for one sex but not the other raises issues of discrimination. >> >> >> ----------------------------------------- >> Thomas C. Berg >> James L. Oberstar Professor of Law and Public Policy University of St. >> Thomas School of Law MSL 400, 1000 LaSalle Avenue >> Minneapolis, MN 55403-2015 >> Phone: 651 962 4918 >> Fax: 651 962 4881 >> E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu> >> SSRN: http://ssrn.com/author='261564 >> Weblog: http://www.mirrorofjustice.blogs.com >> ---------------------------------------------------------------------- >> ------ >> ________________________________ >> From: religionlaw-boun...@lists.ucla.edu >> [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu >> [icl...@law.gwu.edu] >> Sent: Wednesday, November 27, 2013 10:12 AM >> To: Law & Religion issues for Law Academics >> Subject: Re: Discrimination under Title VII and RFRA (was "Patently >> Frivolous") >> >> All of Marci's hypotheticals are loaded up, because they involve direct >> imposition on women's behavior (wear head scarves, don't use certain >> medicines or drugs) rather than just refusing to pay for the relevant goods. >> And Marci's claim that Hobby Lobby and others are engaging in religious >> discrimination seems wrong to me -- the refusal to cover affects every >> female employee, regardless of her religious beliefs or affiliation or >> conduct. >> >> But Marci's argument that Hobby Lobby and others are engaging in sex >> discrimination, in violation, of Title VII, seems much more persuasive - >> the coverage refusal affects all women and only women, and is therefore a >> sex discriminatory denial of legally compelled fringe benefits. I have not >> read a single post that replies to that way of framing the argument. If we >> view this as an attempt to gain a RFRA-based exemption from Title VII as >> well as from the ACA, does that change the analysis? Doesn't the >> government's compelling interest argument get stronger -- under-inclusion is >> no longer a problem of the same degree, and cases like Bob Jones University >> come into the mix? >> >> Are there good answers to this way of framing the question? Is it too late >> for the government to so frame it in the Supreme Court? >> >> >> On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley >> <mwor...@byulaw.net<mailto:mwor...@byulaw.net>> wrote: >> I know this isn't a full answer; but the issue is not whether or not a woman >> can use birth control for cramps, etc. as far as I am aware. >> >> Further, the issue is who pays for the contraception, not whether the >> contraception can be used. >> >> >> On Wed, Nov 27, 2013 at 7:50 AM, >> <hamilto...@aol.com<mailto:hamilto...@aol.com>> wrote: >> The Court has not drawn such a line, in part because it hasn't thought about >> it carefully. Citizens United brings the possibilities to the forefront. >> >> In any event, the for-profit/nonprofit difference makes a meaningful >> difference in this case, because it is in the ACA's women's reproductive >> care mandate, >> and it is in Title VII, which protects women. All of my postings have >> been in this arena, and given the pressures of this holiday week, I didn't >> want to lose >> track of that focus with the lunch hypo Eugene suggested. It is >> undoubtedly interesting, but I don't think very illuminating given >> there is no federal civil rights or constitutional right to lunch or food >> generally. I noticed on NCR that there is some talk by the bishops in light >> of the Pope's welcome focus on the poor, about the fundamental right to >> food, but that takes us far afield from Hobby Lobby with all due respect to >> Eugene. >> >> I had posed some on-point hypotheticals I am deeply interested in knowing >> folks' views on, yet it was lost in the fascinating topics up for discussion. >> >> Here are a few modifications and additions to those. >> >> 1. Can employers successfully invoke RFRA to follow their religious >> beliefs to impose headscarves on every woman in a for-profit corporation of >> over 50 employees (Mandate + Title VII at play)? >> >> 2. Can employers successfully invoke RFRA to follow their religious beliefs >> against contraception to bar women from using contraception to stop a >> woman's constant >> bleeding due to hormone imablances? Or to halt monthly debilitating cramps? >> >> 3. Can employers successfully invoke RFRA to follow their religious >> beliefs against contraception to bar families from providing oral >> contraceptives to girls with disfiguring acne triggered by hormonal shifts? >> >> 4. Can employers successfully invoke RFRA to follow their religious >> beliefs against women working outside the home, and therefore scale salaries >> to deincentivize women and drive them from the workplace. >> >> 5. Can an employer successfully invoke RFRA to follow their religious >> beliefs and fire any female employee who obtains an abortion (which is >> consistent w her religious beliefs)? >> >> All thoughts on these hypotheticals would be greatly appreciated as we work >> through this important issue for religious business owners and women. >> >> Happy Thanksgiving all-- >> >> 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 >> http://sol-reform.com<http://sol-reform.com/> >> [X]<https://www.facebook.com/professormarciahamilton?fref=ts> [X] >> <https://twitter.com/marci_hamilton> >> >> >> -----Original Message----- >> From: Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> >> To: Law & Religion issues for Law Academics >> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> >> Sent: Wed, Nov 27, 2013 12:20 am >> Subject: RE: "Patently Frivolous" and discrimination >> >> But why would that turn a serious argument into a “patently >> frivolous” one? Both nonprofits and for-profits are engaged in monetary >> transactions. (U.S. v. Lee talked of people “enter[ing] into commercial >> activity as a matter of choice,” but education, as we all know, is a >> commercial activity whether carried on by non-profit institutions or >> for-profit ones.) Both choose to participate in such transactions. When >> either discriminates, this has an effect on third parties whom the law is >> trying to protect. >> >> Also, as Chip pointed out, Braunfeld v. Brown involved >> for-profit businesses, and no-one on the Court thought a free exercise claim >> brought by them was patently frivolous. And I should also add that the >> unemployment compensation claimants were also engaged in the commercial >> marketplace, selling their own labor for profit. The Court has never drawn >> a for-profit vs. nonprofit line when it comes to religious freedom claims, >> and though Lee hinted at a marketplace transaction vs. other conduct line, >> the Court hasn’t generally followed such a line (and in any event Lee >> ultimately applied the strict scrutiny test, rather than concluding that the >> marketplace transactions kept that test from being applicable). Likewise, >> to my knowledge lower courts have not drawn such a line. >> >> Eugene >> >> From: >> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.uc >> la.edu> >> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-bounces@ >> lists.ucla.edu?>] On Behalf Of James Oleske >> Sent: Tuesday, November 26, 2013 6:13 PM >> To: Law & Religion issues for Law Academics >> Subject: Re: "Patently Frivolous" and discrimination >> >> But Bob Jones University is a nonprofit, which the Supreme Court noted at >> the beginning of its opinion, and we're talking about the Court's treatment >> of religious exemption claims by for-profit businesses. >> >> >> On Tue, Nov 26, 2013 at 4:59 PM, Volokh, Eugene >> <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: >> I appreciate the point, but when the Court confronted the >> issue more squarely, in Bob Jones, it didn’t treat the university’s claim as >> patently frivolous, but did apply strict scrutiny (though upholding the law, >> of course). Likewise, the 1990s lower court cases involvin _______________________________________________ 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.
