American Culture

ReligionWeek: Will organized religion destroy your religious freedom?

Organized-Religion4On July 2, America’s real Independence Day, by the way, leaders of a number of churches that doctrinally and theologically do not usually see eye-to-eye gathered at the National Press Club for a “religious liberty” press conference to announce their collective effort to trample individual religious freedom. They released “Standing Together for Religious Freedom: An Open Letter for All Americans.” The signatories to the letter included leaders from Catholic, Evangelical, Mormon, Lutheran, and Jewish organizations and denominations, as well as academics and various values-oriented groups, such as Focus on the Family and the Family Research Council.

The point of their letter and presentations is that the Obama Administration and the Department of Health and Human Services are violating the First Amendment’s Free Exercise Clause by requiring insurance companies or administrators to provide birth control coverage in separate policies to persons covered by policies paid for by religious institutions opposed to contraception. In the “Standing Together” letter, the objection is described this way:

Very simply, HHS is forcing Citizen A, against his or her moral convictions, to purchase a product for Citizen B. The HHS policy is coercive and puts the administration in the position of defining–or casting aside–religious doctrine.

In short, the heads of some major conservative religious institutions believe that their right to freely practice their religion trumps an individual’s right to not have religious doctrine forced upon him/her.

The “product” that “Citizen A” is being forced to provide is health insurance, which does not violate the tenets of any known denomination, not even Christian Science. A wall has been proposed by HHS to provide separation of church and contraception, but that apparently is not sufficient. It will only be substantial enough if it imposes religious doctrine on employees of religious-affiliated institutions, regardless of the religious leanings of the employees (or lack thereof). And, let’s face it, we’re talking primarily about women’s use of contraception.

One more point: no one is forcing “Citizen B,” the employee, to buy anything. If the religious doctrine in question, a ban on some or all forms of artificial contraception, is truly compelling for the employee, then that should be sufficient for that person to adhere to the prohibition. But, it’s not. In fact, this prohibition does not convince a majority of any faith to eschew contraception (across the US about 60% of sexually-active women use contraception), much less its employees. Perhaps this is a way to attempt to control the behavior of at least some people associated with institution, since members of the flock don’t always toe the line.

But I digress–I wrote about much of this in a recent post on Hobby Lobby and its claim of religious freedom (which, by the way, the “Standing Together” letter implies support for, “we call upon HHS to, at a minimum, expand conscience protections under the mandate to cover any organization or individual that has religious or moral objections to covering, providing or enabling access to the mandated drugs and services.”) [emphasis added]

What’s really interesting is how groups that would not otherwise get along, come together in the name of power and politics.

Let’s start with the Lutheran Church–Missouri Synod. They oppose interfaith prayer and worship to the point that LCMS pastors were chastised for participating in interfaith services after September 11 and the Newtown shootings. But apparently it was alright, in this case for the president of the LCMS to band together with representatives of the Catholic Church, despite the LCMS aversion to such churches that “attach spiritual or eternal rewards to the works or virtues of men.” This harkens all the way back to Luther and the 15th century argument over whether men are saved by faith alone or through faith and action.

We also have Catholics and Pentecostals sharing the stage. Traditionally, they question each other’s practices. Catholics find the symbolic communion and baptism of Pentecostals wanting. Some Pentecostals, like some Baptists, question the very existence of the Catholic Church and go so far as to call it anti-Christian.

And everyone, despite their past criticisms and questions about its very nature, is willing to partner with the leadership of the Church of Jesus Christ of the Latter Day Saints–Mormons–to build a bigger coalition against the contraception mandate. Just as Evangelicals and Southern Baptists were willing to endorse Mitt Romney, they are now willing to work with the denomination that was once labeled a “cult” because it suits their purpose.

Speaking of cults, nearly all of the churches “Standing Together” consider the Hare Krishnas to be a cult, calling it variously “sinful,” “deceitful,” etc. Some dismiss it as paganism or “just a Hindu sect.” However, for the purposes of defeating the contraception mandate in the name of “religious freedom,” the International Society of Krishna Consciousness is included. In fact, they seem to be the only non-Judeo-Christian faith to join the group.

Add to that the fact that various Christian denominations that promote the belief that, “I am the way, the truth, and the life; no man comes unto the Father, but by me” and yet are willing to share the stage with Jewish leaders who do not share that view.

Why?

My dad was a very thoughtful man–and also a very skeptical one. He was especially skeptical of Big Business and Big Religion. He said on numerous occasions, “Sometimes things just don’t make sense until you add money into the equation.” I don’t know if he was familiar with L. Ron Hubbard’s line, “If you want to get really rich, start a religion.” But I wouldn’t be surprised if he were.

These religious leaders are joining together to gain power and influence. Dating back to the 1980s, conservative Christian groups (primarily Protestants), banded together to exert influence over policy and elections. But as the religious landscape in the US changed, the coalition had to change as well. The tent, as they say, had to get bigger and more inclusive of religious conservatives from different faiths and denominations. The trend towards more overt involvement in politics by religiously-affiliated groups started after the Clinton administration and it shows no sign of slowing. What the individual religions cannot do on their own, they hope to do by joining together to put the combined weight of their membership behind their policy push, sort of a faith-based cartel. A pseudo Big Religion.

Some Big Businesses, who have no religious limitation on their political activity (and Citizens United to provide them with free speech), already strive to have a maximum impact on elections. Imagine the possibilities if Big Religion and Big Business combining to increase each other’s influence over policy and daily life.

Some people argue that anyone who goes to work for a religiously-affiliated institution has to expect to toe their doctrinal lines and if the employees don’t like they, they can quit and find another job. But what if all businesses are granted the ability to impose the religious beliefs of their owners on the employees?

And what better starting place than with something as innocuous as contraception?

17 replies »

  1. This is an absolutely terrific post. Really well done.

    You know my thoughts on why they’re doing this from my post earlier in the week. You’re exactly right. They’re losing power and want it back.

    Organized religion is being marginalized, so they’re expanding into politics to find a new reason for their existence, much as ATT moved into personal computers because they couldn’t find a way to make money in telephony (think about it, a monopoly in the most innovative industry in history and they couldn’t make it work.) At any rate, let’s hope organized religions are as successful at their business expansion into politics as ATT was in personal computers. So far, results for religions have been mixed, e.g., Pat Robertson.

    As for banding together, I suppose two one-legged men could band together and enter an Olympic sprint race, but not sure they’d win.

  2. If this attempt were being made in a country with fewer sources of information and education, it would probably be more successful. If it were being made in a country with more concern about individual rights, it would be more exposed. It wouldn’t even be an issue in countries with a more secular environment.

  3. Actually, you make one very fundamental error in your analysis. The objection is not to the provision of health insurance but to the provision of health insurance which facilitates what the objectors find to be a “moral evil”. This action is most certainly proscribed by the various religions in question.

    Once we exclude the portions of this piece which are dependent upon the erroneous presumption, all we seem to be left with is an article which criticizes the objectors for perceived flaws elsewhere in their behavior and not an article which actually addresses the individual issues raised by the objectors themselves, the very definition of the ad hominem fallacy, suggesting the author does not have a good argument to make.

    • So we’re supposed to make public health policy based on a minority’s definition of “moral evil?” Here are a few things that I consider to be morally evil but I have to support because my government or others deem it necessary:

      The continued wars in Iraq and Afghanistan

      Paying for the licensing of guns that end up killing people

      Tobacco subsidies AND insurance for smokers (personally, if you choose to smoke, I’d cut off your insurance, well, not really, because that would be cruel, but I consider legal tobacco poisoning a moral evil).

      Intentional overpopulation by some families (I’d say no more pregnancy coverage after, say 3 kids, but again, I wouldn’t really do that because that would be cruel, but so is having a dozen or more kids in the 21st century. And before you get on your high horse, my grandmother had 15, 13 survived, and she had at least 2 miscarriages–SO DON’T EVEN GO THERE ON THIS ONE).

      Support for fracking which, given the severe water shortages predicted for the coming decades is an evil, short-sighted use of a precious resource.

      So, to address your first point, on which your second point rests, yes, we are going to provide health insurance which, yes, will include contraception coverage. No one is forcing people to buy the forms of contraception that are objected to by the various religious groups (ranging from 4 types by Hobby Lobby to all types by the Catholic Church to some of the protestant denominations not opposing birth control, only the concept of opposing what they see as government intrusion into religious affairs).

      If these forms of birth control, or ALL forms of birth control are truly, “moral evils,” then use your moral suasion to convince people of the truth of that view so that they will act in a way that you consider moral. Do not ask the government to establish your religious views as the law of the land. THAT is unconstitutional.

      • The first two points and the subsidy of the third point You raise are paid for by tax money, which the courts have held are not subject to religious freedom objections since day 1 of the republic.

        On the second half of Your third point, You are not required to pay for the insurance of Smokers, especially if, as in a number of the Objectors cases, You run a Self-insurance plan.

        Regarding “intentional overpopulation”, to have a law to limit coverage for such would run afoul of the basic principle of Roe v. Wade: the right to reproduce, or not, is left up to the Individual and Any consenting Partner.

        “Support for fracking”, if I understand You correctly, could only be interpreted as “legal support for fracking” which, like the spending of tax money, is not subject to religious freedom style judicial scrutiny.

        Again, the issue is not whether the government is “forcing” contraceptive use but forcing the direct purchase (i.e., without an intervening tax collection) of a policy which facilitates such. To help illustrate, suppose the law required You to *directly* purchase equipment for a fracking company. You would be appalled and I wouldn’t blame You for the outrage You would feel over such a requirement.

        You said, “Do not ask the government to establish your religious views as the law of the land. THAT is unconstitutional.” No, for two reasons. (1) Nobody is asking for such; People are asking for religious exceptions which the Supreme Court has long held are constitutional, especially since the adoption of the Religious Freedom Restoration Act. (2) Establishing One’s religious views as the law of the land is not unconstitutional so long as it does not substantially burden the free exercise of religion of Another, unless that burden, as applied to the Person so burdened, is in furtherance of a compelling government interest and advances that interest using the means which are least burdensome to the burdened Person.

        • BPR – you write: “To help illustrate, suppose the law required You to *directly* purchase equipment for a fracking company. You would be appalled and I wouldn’t blame You for the outrage You would feel over such a requirement.”

          This is a false analogy. The federal government and state legislatures have crafted laws that essentially define medical treatment as a human right, based on “must treat” laws that apply to hospital ERs. As such, medical care is considered fundamentally different from most other enterprises, including energy extraction, by both federal and state law.

          And yes, we are required to pay for smokers insurance. Our tax dollars pay into Medicare and Medicaid, both of which cover smokers and cancer treatments for lung cancer. And Chief Justice Roberts ruled that the Affordable Care Act fell under the federal government’s taxation powers.

          If we extend Roberts’ taxation-based argument, then the various religious organizations should get religious exemptions. After all, as you point out, tax money is not subject to religious exemption.

        • “This is a false analogy. The federal government and state legislatures have crafted laws that essentially define medical treatment as a human right, based on ‘must treat’ laws that apply to hospital ERs. As such, medical care is considered fundamentally different from most other enterprises, including energy extraction, by both federal and state law.” — Even if the assertion “statutes define medical treatment as a human right” is true, which I am not saying it is or is not, federal law and regulations are still required to abide by the Religious Freedom Restoration Act (RFRA), absent an explicit exception. The PPACA contained no such explicit exception. Consequently, the PPACA and all regulations made pursuant to it are required to abide by the RFRA. However, the argument “statutes have defined medical treatment as a human right” is a dangerous one to present if One seeks to maintain Roe v. Wade. Followed to its logical conclusion, the congress could define the “right to Life” as a “human right”, applicable to anything to any living Entity which is Human, including such Entities in utero and before viability. However, the *judiciary*, not the legislature, gets to decide what People’s basic rights are. As such, Roe could not be overturned by such a statute and the right to religious freedom, likewise, can not be so easily overridden simply because other statutes have been passed. Therefore, the analogy is not false.

          “And yes, we are required to pay for smokers insurance. Our tax dollars pay into Medicare and Medicaid, both of which cover smokers and cancer treatments for lung cancer.” — Again, this action is done with an intervening collection of tax money.

          “And Chief Justice Roberts ruled that the Affordable Care Act fell under the federal government’s taxation powers.” — No, the court’s opinion ruled the *penalty* for violating the *Individual* mandate qualified as a tax; no opinion was expressed about the *Employer* mandate itself.

          “If we extend Roberts’ taxation-based argument, then the various religious organizations should get religious exemptions. After all, as you point out, tax money is not subject to religious exemption.” — While I am glad to see We agree religious exemptions apply, these two statements appear to contradict each other. Perhaps You meant “religious organizations should NOT get religious exemptions”? If such is the case, You would be wrong because the standard required by the RFRA still applies.

          “The Affordable Care Act essentially defines improving the overall health of women as a compelling government interest.” — Incorrect, only the courts get to decide at the federal level what qualifies as a “compelling government interest”; otherwise, the GOP could overturn Roe with a simple statement by the cognress declaring, “The protection of Life at all stages of development from the moment of fertilization is a compelling government interest.” However, even if such were the case, the PPACA still leaves all existing policies in “grandfathered” status and not subject to the requirements of the PPACA. Such policies cover between an estimated 75 and 200 million People; in a population of approximately 313 million People, this is not a small fraction. The argument such an interest is a compelling one is completely undercut by the structure of the statute.

          “The Congress wrote, and the President concurred, that part of that compelling government interest was women’s reproductive health, the reduction of unplanned pregnancies, and reducing the social costs of unplanned pregnancies.” — Again, only the judiciary gets to make that decision at the federal level.

          “As such, the federal government concluded that the least burdensome approach to achieving this compelling government interest was by requiring insurance plans to provide contraceptive coverage.” — Incorrect, the conclusion reached was this approach was the least burdensome *under*the*PPACA*. However, the RFRA does not say, “Well, it’s ok if the method used is the least burdensome available under current law”; it says, “the least restrictive means of furthering that compelling governmental interest.” (Source: 42 USC 2000bb-1)

          “Therefore, by your own logic, it’s just fine for the government to demand that even self-insuring organizations that have moral objections to contraception be forced to provide it.” — As I have shown, no.

          “If objecting organizations are so certain that none of their employees will ever desire or need contraception, then they shouldn’t have any problem providing contraception insurance. After all, that aspect of their insurance plan will never be used, right?” — Again, the *provision* of this kind of coverage is the issue; not the level of certainty with respect to use. As far as I can tell the “certainty of use” has never come up in any of the legal challenges to the mandate.

          “And if their employees do find a need for contraception, then perhaps that should invoke some soul-searching on the part of the objecting organizations instead.” — They already can.

        • BPS – Most of what you wrote doesn’t actually address my points at all.

          Even if the assertion “statutes define medical treatment as a human right” is true, which I am not saying it is or is not, federal law and regulations are still required to abide by the Religious Freedom Restoration Act (RFRA), absent an explicit exception. The PPACA contained no such explicit exception. Consequently, the PPACA and all regulations made pursuant to it are required to abide by the RFRA. However, the argument “statutes have defined medical treatment as a human right” is a dangerous one to present if One seeks to maintain Roe v. Wade. Followed to its logical conclusion, the congress could define the “right to Life” as a “human right”, applicable to anything to any living Entity which is Human, including such Entities in utero and before viability. However, the *judiciary*, not the legislature, gets to decide what People’s basic rights are. As such, Roe could not be overturned by such a statute and the right to religious freedom, likewise, can not be so easily overridden simply because other statutes have been passed. Therefore, the analogy is not false.

          In the quote above, everything that I’ve italicized is a massive red herring. Everything that is bold is your actual argument. Stripping out the red herring, your argument reduces to the following:

          Federal law and regulations are still required to abide by the Religious Freedom Restoration Act (RFRA), absent an explicit exception. The PPACA contained no such explicit exception. Consequently, the PPACA and all regulations made pursuant to it are required to abide by the RFRA. However, the *judiciary*, not the legislature, gets to decide what People’s basic rights are. Therefore, the analogy is not false.

          To simplify my argument, I’m saying that state and federal governments have declared that medical care is fundamentally different (such as via the Emergency Medical Treatment & Labor Act, or EMTALA) from other types of goods and services, such as your fracking analogy. You’re saying that the ACA has to abide by the RFRA, that the judiciary and not the legislature gets to define what is a fundamental right, and thus my analogy is wrong.

          Sorry, but that’s a non-sequitor. You haven’t demonstrated that the ACA fails to meet the RFRA and you haven’t demonstrated that only the judiciary gets to define what is and is not a human right. Thus, until such time as you can demonstrate – without using an argument riddled with logical fallacies – that my argument is unsound, your analogy is still false.

          I will grant you that the judiciary is the ultimate arbiter of what is and is not considered a human right by the US government. However, the Congress and the President get to define what they feel should be a right. And that definition stands as the law of the land until such time as the federal courts (possibly up to the Supreme Court) overrule the legislation. At the moment, EMTALA comes pretty darn close to defining medical treatment as a basic human right, and a quick review of the federal cases indicates that there have been no successful challenges to EMTALA’s requirement that people who show up at an ER be treated regardless of their ability to pay.

          I will also grant you that the individual mandate ruling does not necessarily apply to employers. However, as the Supreme Court has ruled that companies and organizations have the same rights as individuals, the individual mandate could be logically extended using Supreme Court precedence to include all juristic persons who have been granted individual rights. Using this approach, the individual mandate also becomes an employer mandate. I’m not saying that this is necessarily wise, but it would be sweet irony to find that there are disadvantages to corporate personhood as well as advantages.

          And I do apologize for the inadvertent contradiction. I did indeed mean that “religious organizations should NOT get religious exemptions” in this case. Personally I feel that religious organizations should not get special status of any kind beyond the same kind of benefits granted to any secular NGO or corporation, but that’s a personal opinion.

          While I wasn’t aware of the grandfathering, I’m not surprised by it. It means simply that the ACA was designed to serve the compelling government interest of minimizing disruption to both insurers and the insured. what may be 200 million people today may drop to 150 million next year, 100 million by the following year, and so on. As such, your grandfathering contention is yet another red herring that does not actually demonstrate what you say it does.

          [I did go looking for more information on grandfathering issue and found that the facts also don’t support your contention. The ACA did not specifically say when it was that an existing plan that was grandfathered was no longer considered to be such, but the Department of Labor regulations in the Federal Registry do have that information. The stated reason for the rules is to “ease the transition of the healthcare industry into the reforms established by the Affordable Care Act by allowing for gradual implementation of reforms.”]

        • “BPS – Most of what you wrote doesn’t actually address my points at all.” — Did I? I thought I focused on each in turn. Which ones did I miss?

          “In the quote above, everything that I’ve italicized is a massive red herring. Everything that is bold is your actual argument. Stripping out the red herring, your argument reduces to the following:” — Actually, You italicized the entire portion, at least according to the e-mail in which I am reading this. The non-bold portions are illustrative as to which I believe the argument I am referencing is invalid.

          “You’re saying that the ACA has to abide by the RFRA, that the judiciary and not the legislature gets to define what is a fundamental right, and thus my analogy is wrong.” — Actually, I am saying the judiciary gets to define what is a “compelling interest”. No provision exists in the federal constitution granting the congress or the President the power to define what qualifies as a compelling interest, the states themselves have only authority over state matters according to the idea of federalism which is the foundation of the American government, while the judiciary is charged with constitution interpretation according the principle of judicial review established in Marbury v. Madison. As such, only the judiciary can define “compelling interest” with any constitutional authoirty. However, after a quick review of the requirements of the RFRA, We can, for purposes of the next point, presume either the congress, the President, or both, have authority to define “compelling interest” and still show this particular regulation fails its requirements. [Note: If You are intimately familiar with the text of RFRA, I apologize. I merely wish to verify We have the same information before Us.]

          The RFRA, codified in 42 USC 2000bb thru 2000bb-4, reads (excluding section markers, subsection markers, findings, purposes, etc.), “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. [(b)] Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest. … [T]he term ‘government’ includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity; the term ‘covered entity’ means the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States; the term ‘demonstrates’ means meets the burdens of going forward with the evidence and of persuasion; and the term ‘exercise of religion’ means religious exercise, as defined in section 2000cc–5 of this title. … This chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993. Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter. ” The referenced 42 USC 2000cc-5 reads, in relevant part, “The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

          “You haven’t demonstrated that the ACA fails to meet the RFRA and you haven’t demonstrated that only the judiciary gets to define what is and is not a human right.” — As noted earlier, the question is, “What qualifies as a ‘compelling interest’.” In Boerne v. Flores, the federal government argued the congress (or the President by signing RFRA) had the authority to define what qualifies as a compelling interest in order to require the states to abide by RFRA. (The original version applied to the states as well as the federal government.) However, the Supreme Court rejected that argument, demonstrating neither the congress nor the President get to define “compelling interest”. However, even if congress or the executive branch could define what is a “compelling interest”, I will now show this particular regulation would fail RFRA just the same.

          In Gonzales v. UDV, a case involving religious exercise and hoasca (a substance banned under the Controlled Substances Act), the Supreme Court rejects the notion the government “has a compelling interest in the uniform application of the Controlled Substances Act”. One reason the court cites for rejecting such an argument is the fact the act exempts other substances, such as peyote, for religious purposes, noting the explicit exemption “fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA”. Likewise, the explicit exemption from regulation of health insurance policies existing at the time the PPACA is enacted “fataly undermines the Government’s broader contention that the [PPACA] establishes a closed regulatory system that admits of no exceptions under RFRA.”

          If the foregoing analysis is correct, however, the regulation in question may be preserved by means of an explicit exemption to RFRA, as allowed by 42 USC 2000bb-3(b). Unfortunately for the regulation, the PPACA contains no such explicit exemption. While this point would be enough to dismiss the claim the regulation in question complies with RFRA, We can presume such an exemption was provided and show, even then, the regulation fails to meet the burden required.

          The regulation would be permissible, if in furtherance of a compelling government, if it utilizes “the least restrictive means of furthering that compelling governmental interest”. However, the regulation does not. One method which would further the interest would be to move covered products from requiring a prescription to being sold over the counter; numerous other countries sell such products over the counter with few, if not zero, problems and the ability to comparison shop between whatever comperable products One may have will help to lower the price, making the products more affordable by All. Another method would be have Manufacturers or Merchants give the products away for free and to send a bill to the federal government for reimbursement or claim a tax credit. Yet another method would be for the President to sign a blanket pardon for Anyone deducting the cost of such products directly from Their income tax bill for, say, the next 10 years; the constitution entrusts the pardoning power completely in the President and, as We see in the case of former President Nixon, One need not have been convicted before receiving a pardon.

          All of this, however, presumes the regulation “substantially burden[s] a person’s exercise of religion”, as required by RFRA. According to the Dicitonary Act, 1 USC 1, “unless the context indicates otherwise … the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals”. The text of RFRA does not indicate otherwise; therefore, whether I like it or not, the “Person” in RFRA can be a company or corporation.

          But can a company or corporation “exercise religion”? The wording of Citizens United hints at “yes”, as does the very fact many churches, which obviously exercise religion, operate as non-profit corporations under 26 USC 501c(3). The for-profit or not-for-profit nature of the corporation in question comes up at no point in the analysis of relevant statutes.

          But, even if all of this is true, is the burden “substantial”? A corporation, with 50 full-time equivalent Employees, which covers all required products and services but, say, Ella, Plan B, and IUDs, even for just 1 Employee, faces fines of $100 per Employee (less an initial 30, if I recall correctly) per day. The fine levied rapidly approaches almost $40,000 per Employee per year. In contrast, the Supreme Court found, in Wisconsin v. Yoder, even a fine of $5 a day constitutes a “substantial budrden”.

          Consequently, every step along the way in this analysis, the regulation fails the requirements of RFRA.

          Regarding Your paragraph on EMTALA, again the issue is not “human rights” but “compelling interest”. Given the conflation of the two concepts, I trust inadvertent, I see no reason to address it at this point in time.

          Regarding extending the Individual mandate to Employers, a plain text reading of the PPACA would not result in such an extension by any logically sound approach. The statute specifically uses the word “Individual”, as opposed to “Person”. [Also, regarding “sweet irony”, I strongly suggest avoid such phrases as they can, reasonably but inadevertenly, come across as “schadenfreudic speculation” and may make constructive discussion more difficult. I do take Your point, however.]

          “It means simply that the ACA was designed to serve the compelling government interest of minimizing disruption to both insurers and the insured.” — No court case has established such an interest qualifies as compelling, though I agree such minimization can be helpful. The cost, however, is One does not get to claim, “This law is so important to have We are going to exempt 2/3 of the public from it” and reasonably expect to be taken with a certain degree of sincerity.

          “what may be 200 million people today may drop to 150 million next year, 100 million by the following year, and so on. As such, your grandfathering contention is yet another red herring that does not actually demonstrate what you say it does.” — No, the contention shows just how “uncompelling” the congress felt the need to apply the new rules to all cases actually is. While the number of such plans may drop over time, so long as such a large number of plans exist, the claim of “compelling interest” in advancing such regulations rings hollow.

          “I did go looking for more information on grandfathering issue and found that the facts also don’t support your contention. The ACA did not specifically say when it was that an existing plan that was grandfathered was no longer considered to be such” — I fail to see how the definition of such a plan which, according to section 1401(a) of the PPACA, is codified in 26 USC 36B(c)(3)(b) and defined as “the meaning given such term by section 1251 of the Patient Protection and Affordable Care Act” fails to support My contention of millions of existing emptionss. At the time of enactment of the PPACA, according to the census bureau (do a web search for “Coverage by Type of Health Insurance: 2010 and 2011” to find the source), approximately 16.3 million People were uninsured which means approximately 280 million People, over 90% of the population, had a “granfathered plan”. The data in the census table from which I pulled this information also suggests the numbers involved have not changed much since then, leaving a large fraction of the populace unaffected by the contested regulation, undermining the notion said regulation, as applied to each individual Objector, is in furtherance of a “compelling interest”.

          “The stated reason for the rules is to ‘ease the transition of the healthcare industry into the reforms established by the Affordable Care Act by allowing for gradual implementation of reforms.'” — Whether or not congress had this concern in Mind at the time, however, is irrelevant. Given the large number of “grandfathered plans” still existing, the question remains, “How compelling is this interest?” The exemption for “grandfathered plans”, like in the case of Gonzales v. UDV, contradicts the idea Women’s health is so important to the point alternative means may not be considered; if the congress thought Women’s health was and is so important, why not make the requirements for “grandfather” status more difficult to maintain? Why give a “grandfather” status at all? When passing seat belt laws, no state says, “Well, this interest is compelling (or important) because it will say Lives but We will give People until They buy a new car before enforcing the rule against Them.” If the congress wanted to refer to Women’s health as a “compelling interest”, They knew how to not include a “grandfathered” status to insurance policies and could denied one easily.

        • BPS – Responding to each sentence or each paragraph isn’t necessarily a response to each argument.

          I italicized all the Roe v. Wade stuff, since it was an irrelevant red herring. And your counterargument against my false analogy claim was (paraphrased) that the federal government must adhere to the RFRA, that the judiciary gets to define what is or is not a right, thus your analogy was good. Point B does not follow from point A, and the conclusion doesn’t follow from either, thus it’s a non-sequitor.

          Now, that said, you’ve made a much better argument in your most recent comment about the judicial system defining what is and is not a compelling interest, as well as what is or is not a human right. And I did not conflate “human rights” with “compelling interest” in my EMTALA argument. I said exactly what I meant to say – Congress and the President get to define what is a human right AND what is a “compelling government interest” until such time as the courts rule otherwise. And if the courts never choose otherwise, what Congress and the President say is a human right is, for all intents and purposes, a human right.

          I’m not convinced that Gonzales v. UDV is a good example of what you’re trying to demonstrate. In that case, the Supreme Court ruled that a controlled substance used by a religion for religious ceremonies could be exempted from the Controlled Substance Act for that religion. You are arguing that the same exemption from uniform enforcement of the Controlled Substance Act that the Supreme Court carved out should apply to the ACA.

          The reason I’m not convinced that this argument applies, however, is because there are critical differences between a substance (huaca) with explicit religious uses and a substance (birth-control pills) with strictly medical uses. In my opinion that’s a suitably large difference to render Gonzales v. UDV inapplicable as precedent.

          Your suggestions for alternative, less restrictive ways to handle contraception have a better chance of winning the day in a court than Gonzales v. UDV does. Over-the-counter might still be a problem, depending on precisely how FLEX and HSA laws are worded, and there are valid medical reasons not to do this, regardless of whether those reasons are sufficiently compelling to prevent such a transition. Reducing pricing by itself doesn’t do anything without also going to over-the-counter as insurance plans are still required to cover cheap drugs (I couldn’t tell from your comment whether you meant to link them or make them independent). Giving away contraception for free would work just fine, but again there are medical reasons why some people should not be on birth-control pills (as an example). I don’t know enough about the Pardoning process to know if what you suggest there is even viable or not.

          I wish I could argue with your points about whether or not the ACA could constitute a “substantial burden,” but as things are written right now, I suspect you’re correct. All I can say is that there are a lot of entities defined as “person” who simply shouldn’t be. But that’s a fundamental problem with the entire federal government and one that will require a Supreme Court willing to reverse itself on a bunch of long established precedents. A Constitutional Amendment is more likely, frankly.

          Assuming for a moment that there has not yet been a significant dropoff in the number of grandfathered plans (please provide a link for that claim, by the way – I find looking at the original data provides more insight than someone else’s interpretation the data), a slow initial change in the number of grandfathered plans does not necessarily imply that the number of grandfathered plans will continue to drop only slowly. The ACA’s new requirements would have incentived both insurers and insureds to negotiate plans that would be grandfathered in. Those contracts may not yet have come up for renewal, or health care inflation may have slowed sufficiently that businesses may not have yet had to change plans (which would end the grandfathering) in order to control their health care costs. As such, a slow dropoff in the number of people in grandfathered plans does not necessarily support your argument.

          I’m going to turn your “how compelling the interest” question around on you – if women’s health vis a vis contraception was so uncompelling as you are implying, why include it in the ACA at all? Congress didn’t have to include a mandate that insurance companies pay for birth control pills, after all. But they did, and that means that the majority of Congress and the President felt that doing so was important (and perhaps they felt it met the “compelling” test as well).

          There is nothing that prevents the Congress and President from balancing two compelling (or merely important) interests. In a law as wide-reaching as the ACA, there are multiple interests that could qualify as compelling – such as the reproductive health of half the US population. In a case where multiple interests could each be equally compelling, it would be irresponsible of the Congress and President to not balance them as best they can.

          All that said, however, your arguments about the financial burden of fees and alternative, probably less restrictive approaches to handling contraception make a good legal case that, in the end, the corporate mandate will probably not apply to religious groups. Whether that’s moral, ethical, right, or fair, however, are entirely different questions.

        • “BPS – Responding to each sentence or each paragraph isn’t necessarily a response to each argument.” — Doing so is responding to the various compenents of such an argument. If each component is erroneous, the sum of the erroneous parts do not turn the false pieces into true ones.

          “I italicized all the Roe v. Wade stuff, since it was an irrelevant red herring. And your counterargument against my false analogy claim was (paraphrased) that the federal government must adhere to the RFRA, that the judiciary gets to define what is or is not a right, thus your analogy was good. Point B does not follow from point A, and the conclusion doesn’t follow from either, thus it’s a non-sequitor.” — Perhaps You do not understand the notion of illustration? I was using Your position to show why it must be false. If Your assertion were true, the Roe conclusion counter to existing case law I provided would also be true. However, to argue Roe is false when the Supreme Court continues to hold Roe as law is inaccurate. The illustration was t show why Your premise of “Congress and/or the President gets to decide what is a compelling interest”, which is still the issue and not what qualifies as a Human right, was false.

          “I did not conflate ‘human rights’ with ‘compelling interest’ in my EMTALA argument. I said exactly what I meant to say – Congress and the President get to define what is a human right AND what is a ‘compelling government interest’ until such time as the courts rule otherwise. And if the courts never choose otherwise, what Congress and the President say is a human right is, for all intents and purposes, a human right.” — Perhaps You are not well versed in constitutional structure? An action taken in violation of constitutional constraints does not cease to be so simply because a court case has not yet been presented to the Supreme Court. Such an action remains unconstitutional. Neither the congress nor the President have any authority, explicit or implied, to define what qualifies as a “compelling interest”, which You certainly are conflating with “Human rights”. The two concepts are distinctly different in the legal analysis at hand: one is referenced in the RFRA and the other is not.

          “I’m not convinced that Gonzales v. UDV is a good example of what you’re trying to demonstrate. In that case, the Supreme Court ruled that a controlled substance used by a religion for religious ceremonies could be exempted from the Controlled Substance Act for that religion. You are arguing that the same exemption from uniform enforcement of the Controlled Substance Act that the Supreme Court carved out should apply to the ACA.” — Because analogous circumstances exist, the Objectors argue such an exemption is already carved out by the RFRA.

          “The reason I’m not convinced that this argument applies, however, is because there are critical differences between a substance (huaca) with explicit religious uses and a substance (birth-control pills) with strictly medical uses. In my opinion that’s a suitably large difference to render Gonzales v. UDV inapplicable as precedent.” — Not really, no. The question before the court in that case was whether the federal government could demonstrate a compelling interest in prohibiting its use, as well as the other requirements of RFRA being met. In this case, the question is whether the federal government can demonstrate a compelling interest in requiring a Person to directly purchase a product for Someone Else if the 1st Person has a sincere religious objection to purchasing such a product. The demonstration in this case is much harder to accomplish since, in the words of Jay Carney, White House Press Secretary, the Employer mandate “affects only 4 percent of businesses, roughly, with more than 50 employees” and, as the Supreme Court noted in Brown v. Entertainment Merchants Association, “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.”

          “Over-the-counter might still be a problem, depending on precisely how FLEX and HSA laws are worded, and there are valid medical reasons not to do this, regardless of whether those reasons are sufficiently compelling to prevent such a transition.” — Even if such is the case, the RFRA makes no allowances for such. Maybe it should. Maybe it shouldn’t. Nonetheless, it does not.

          “Reducing pricing by itself doesn’t do anything without also going to over-the-counter as insurance plans are still required to cover cheap drugs (I couldn’t tell from your comment whether you meant to link them or make them independent).” — The idea would be, by going OTC, products could be compared for effectiveness, safety, and price, placing downward pressure on prices, increasing availability.

          “Giving away contraception for free would work just fine, but again there are medical reasons why some people should not be on birth-control pills (as an example).” — Under this approach, a prescription could still be required. However, given numerous other countries’ experiences with OTC contraception, I think the risk are not as great as Some might fear.

          “I don’t know enough about the Pardoning process to know if what you suggest there is even viable or not.” — Article II of the constitution gives complete pardoning power to the President. It may not be challenged by the congress or the courts. No restrictions on Who may be pardoned when are mentioned anywhere in the text. For reference, the exact wording is, “The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” (Article II, Section 2, Clause 1)

          “All I can say is that there are a lot of entities defined as ‘person’ who simply shouldn’t be. But that’s a fundamental problem with the entire federal government and one that will require a Supreme Court willing to reverse itself on a bunch of long established precedents. A Constitutional Amendment is more likely, frankly.” — Actually, no. It takes only a simple majority of the House and Senate, combined with a Presidential signature to change the Dictionary Act, where “Person” is defined. Even with a Presidential veto, overturning that veto takes only a 2/3 majority of both houses. conversely, a 2/3 majority of both houses is needed to just *submit* an amendment to the states and 3/4 of the states would need to ratify it. Changing the Dictionary Act, though it may seem difficult, is far easier.

          “Assuming for a moment that there has not yet been a significant dropoff in the number of grandfathered plans (please provide a link for that claim, by the way – I find looking at the original data provides more insight than someone else’s interpretation the data), a slow initial change in the number of grandfathered plans does not necessarily imply that the number of grandfathered plans will continue to drop only slowly.” — Nonetheless, the number of plans grandfathered at the time undermines the contention the interest is compelling. If HHS wanted to revisit the issue later, it would have an easier time. However, given the fact Jay Carney pointed out, even now, only 4% of large businesses are effected by the mandate, and all small businesses are exempt from it, I think it would be a very long time before that option is open. Even then, the least-burdensome requirement of the RFRA must be met.

          “The ACA’s new requirements would have incentived both insurers and insureds to negotiate plans that would be grandfathered in. Those contracts may not yet have come up for renewal, or health care inflation may have slowed sufficiently that businesses may not have yet had to change plans (which would end the grandfathering) in order to control their health care costs. As such, a slow dropoff in the number of people in grandfathered plans does not necessarily support your argument.” — To the contrary, the fact so many plans are, whatever the reason, exempt from the requirement shows the congress does not genuinely believe this requirement is all that compelling.

          “I’m going to turn your ‘how compelling the interest’ question around on you – if women’s health vis a vis contraception was so uncompelling as you are implying, why include it in the ACA at all? Congress didn’t have to include a mandate that insurance companies pay for birth control pills, after all. But they did, and that means that the majority of Congress and the President felt that doing so was important (and perhaps they felt it met the ‘compelling’ test as well).” — Actually, no, the congress did not include such in the bill. The requirement comes in the form of an HHS regulation. Congress did not bother to “include it in the ACA at all”. Congress did not “include a mandate that insurance companies pay for birth control pills”. So, perhaps, “the majority of Congress and the President felt that doing so was” not important?

          “In a case where multiple interests could each be equally compelling, it would be irresponsible of the Congress and President to not balance them as best they can.” — In a case where existing law places restraint on regulatory agencies and new laws do not loosen said restraint, regulatory Officials insisting on what amounts to violating that restraint raise the question of how commited They are to the rule of law.

          “All that said, however, your arguments about the financial burden of fees and alternative, probably less restrictive approaches to handling contraception make a good legal case that, in the end, the corporate mandate will probably not apply to religious groups.” — If I recall correctly, the mandate is a “contraception mandate” and the question is about whether it applies to “religious Objectors”.

          “Whether that’s moral, ethical, right, or fair, however, are entirely different questions.” — None of which are legal questions.

        • BPR – you also write: “(2) Establishing One’s religious views as the law of the land is not unconstitutional so long as it does not substantially burden the free exercise of religion of Another, unless that burden, as applied to the Person so burdened, is in furtherance of a compelling government interest and advances that interest using the means which are least burdensome to the burdened Person. (emphasis mine)”

          So let’s look at this argument just a little. The Affordable Care Act essentially defines improving the overall health of women as a compelling government interest. The Congress wrote, and the President concurred, that part of that compelling government interest was women’s reproductive health, the reduction of unplanned pregnancies, and reducing the social costs of unplanned pregnancies. As such, the federal government concluded that the least burdensome approach to achieving this compelling government interest was by requiring insurance plans to provide contraceptive coverage. Therefore, by your own logic, it’s just fine for the government to demand that even self-insuring organizations that have moral objections to contraception be forced to provide it.

          If objecting organizations are so certain that none of their employees will ever desire or need contraception, then they shouldn’t have any problem providing contraception insurance. After all, that aspect of their insurance plan will never be used, right?

          And if their employees do find a need for contraception, then perhaps that should invoke some soul-searching on the part of the objecting organizations instead.

  4. BPR: It sounds as if we could resolve your objections with a single-payer, universal healthcare system that was run by the government and paid for by a tax. That would clarify the compelling government interests and separate religious institutions/individuals from the provision of healthcare.

    • I could go for that. In fact, I wish that was the original plan: delete the words “over 65” from the Medicare statute, a simple one sentence principle. Alas, We started with a compromised bill which was compromised further over and over again just to keep Democrats on board. *sigh* 😦