Tuesday, February 14, 2012
Marty Lederman sends in the following response to Robby's column (Marty is having difficulty posting comments, and it seemed to me that this one is responsive more to Professor George's piece than to my post).
If I understand Robert George's new column, he is rejecting altogether the distinction between proximate and remote material cooperation in cases where they both foreseeably lead to the disfavored conduct by others. He writes:
Bob and Steve both suggest, in recent posts, that we should not be too hard on the Obama administration for its insensitivity to religious freedom (an insensitivity that, in my view, is established by the at-least-clear-and-convincing evidence of the Hosanna-Tabor brief and the HHS mandate, which is -- notwithstanding Friday's announcement -- still the law), because Justice Scalia, in Smith, was insensitive to it, too.
Obviously, like any human being, Justice Scalia makes mistakes. However, as Bob and Steve know, the comparison between (1) an interpretation according to which judicially-created accommodations from generally applicable and neutral laws are not required by the First Amendment, but legislative accommodations are both permissible and welcome (i.e., Justice Scalia's view in Smith), and (2) a decision by a political actor to refuse an accommodation (or to grant an inadequate one) that the Constitution clearly would allow, even if it does not require, misses a lot that matters. Smith, to repeat, is not hostile to exemptions, but to judicial second-guessing of the balance struck by the political process. The case welcomes (as has Justice Scalia in other cases) accommodations; the President, and his supporters, seem to regard them as presumptively unjustified, and warranted only to the extent the need to tamp down political firestorms requires.
So, contrary to Steve's suggestion, there is no "irony" in conservatives' expression of regret over the mandate (and over whatever modifications to it Friday's announcement might bring). More striking, to me, than this non-irony is the apparent fact that those of Obama's Catholic supporters who (to their credit) were willing to "call out" the Administration for the arrogance displayed in Sec. Sebelius's handling of the mandate seem to have been satisfied by an announcement that (i) does not repudiate the administration's earlier insistence that the original (and still operative) form of the mandate reflected an appropriate respect for religious freedom; (ii) still will require religious employers to bear the cost (though perhaps slightly less directly) of employees' abortion-causing drugs; (iii) does nothing to revise the very narrow religious-employer exemption, which was the target of these supporters' (strong, in some cases) criticism; and (iv) seems so obviously calculated simply to shore up the base, and quiet down the critics, for the few months that remain between now and the election. Indeed, these supporters seem -- to my great regret -- to have returned enthusiastically to the tired and sad script according to which those Catholics who persist in thinking that President Obama is not, well, awesome are nothing more than bad-faith hacks, partisans, and moral unsophisticates. Too bad.
Prompted by Bob Hockett's characteristically thoughtful (and nicely focused) questions in his MoJ post entitled "Request for Clarification on Revised HHS Mandate," Sherif Girgis and I have written an article for Public Discourse entitled "Morals and Mandates." Here is a link: http://www.thepublicdiscourse.com/2012/02/4736. Readers who do us the honor of having a look, might while at the Public Discourse site also take a few minutes to read yesterday's article, by Matthew Franck, entitled "President Obama, the Right Not to Do Wrong, and the Politics of Ruse and Delay." I should note that Sherif and I composed our article before Rob Vischer's MoJ post entitled "Dazed and Confused (on the HHS Mandate)" appeared. I think, however, that the article makes some points and arguments that are relevant to Rob's very good questions about what the mandate does and how it is to be evaluated from the moral point of view.
I started to post this as a response to some of Rob's thoughtful questions, but the comment became long, so I am posting here. I am as puzzled by the new arrangement as is Rob. Rob says: "If the insurer did not pass on any increased cost for contraceptive coverage to the objecting employer (either because there is no increased cost or because the insurer was required to spread the costs among all non-objecting insureds)..."
I do not think one gets to this difficult question, for several reasons.
1. Why would a non-objecting employer or a non-objecting insured ever agree to foot the bill for other people not on its employment roll? Or for employers with whose beliefs it may vehemently disagree (and might not that, in turn, give rise to a possible conscience objection?), and in a situation where the objecting employer was paying nothing? That seems wildly unlikely to me. Non-objecting employers using the same insurance company as the objecting employers would almost certainly object strenuously to this. If their objections were not heeded, wouldn't they seek other insurers? I suppose this may depend on a cost/benefit assessment, but it seems implausible to think that the cost would be borne only by non-objecting employers. And how could the government compel that sort of arrangement, even if that's what it intended (also, in my opinion, not likely)?
2. It also seems implausible that the insurer would provide the services "for free." Let's put aside the canard about whether the coverage of contraceptive services is "revenue neutral," as this is an irrelevancy about whether the insurer will in the end make money from covering these services. I think Bob Hockett in one of his posts below suggested that one possibility is that the insurer might make a separate insurance "contract" with the insured, for providing these services. That seems unlikely to me, for two reasons. (A) A contract in which one side provides products for free to the other side doesn't seem to me to be a contract at all, as there is no consideration. It's a gift and therefore unenforceable. (B) Nobody has suggested that a separate contract between insurer and insured is an option. What we are talking about is that the religious employer pays for a policy in which products as to which it has a conscientious objection are included as part of what it is paying for, even if (now) not listed on the terms of the policy that it provides to the employee.
3. On the last point, I cannot see my way through to any other conclusion than that the religious employer will be paying for these services. It will pay for them by procuring its insurance contract. And it will pay for them in the form of increased premiums (again, whatever may ultimately be the case for the insurer's bottom line). I am not familiar with what an insurer is required to disclose to an employer about the reasons for an increase in premium. But it would surprise me if the insurer needed to say to the employer, "We hereby increase your premium by X in order to cover the costs of contraceptive services which we must now provide to your employees." But whether the terms of the premium increase are explicit or implicit, I am having difficulty escaping the conclusion that it is the employer who will be paying.
UPDATE: Having read Robby's helpful discussion above, which analyzes what the insurer needs to do as making an "offer" which the employee can then "accept," I thought to reemphasize those features traditionally necessary to make a contract: offer, acceptance, and bargained-for consideration. As a general matter, there is no contract without the last component. But in Robby's description, the offer and acceptance are incident to the insurance contract proper itself. So the bargained-for consideration is the money that the employer has paid to procure the policy. That's as it had to be, of course, since a separate contract would require separate consideration, and could not be procured for free.
I confess that I remain confused about President Obama's proposed "compromise" on the HHS mandate. It seems to me like it might do more than nothing, but not a lot more than nothing. Let's put to the side the issues created by the administration's failures 1) to exempt self-insured employers from the contraceptive mandate; 2) to exempt religiously affiliated insurance providers. For objecting employers who rely on outside insurance providers, I still have questions:
If the insurer did not pass on any increased cost for contraceptive coverage to the objecting employer (either because there is no increased cost or because the insurer was required to spread the costs among all non-objecting insureds), and if the transaction by which the contraceptive coverage is procured would take place without any communication or action by the objecting employer, would the revised Obama rule still be objectionable? It seems like the risk of scandal is lower, but that's not the only consideration, I realize. What would the precise objection be under that scenario?
If the answer is yes, to what extent does the remaining objection turn on whether any universal access to contraception is objectionable? In other words, would the same objections persist if the government agreed to pay the cost of contraceptive coverage? If not, what is the difference between an insurer paying for the coverage and spreading the costs among all insureds versus the government paying for the coverage and spreading the costs among all taxpayers? Is the difference only one of degree?
The initial HHS rule was so egregious that it was easy to criticize it without getting into deeper questions about the goods and services covered -- e.g., whether contraception should be considered as a core element of "health care," whether some of the covered drugs cause abortions, etc. Judging from how the debates have been unfolding since Friday, it seems (to me) that some of those deeper questions are coming closer to the surface. That's not necessarily a bad thing, but does it suggest that President Obama's strategic move on Friday has made the straightforward religious liberty argument less obvious?
Monday, February 13, 2012
If you want to take a step back from the contraception mandate, here's an interesting reminder of some of the more basic questions underlying our country's approach to healthcare, a short essay to be published in Harvard's Journal of Law & Public Policy by George Mason's Neomi Rao. The abstract:
The concept of human dignity provides a useful reference point for evaluating American exceptionalism in the context of welfare rights. Since World War II, human dignity has emerged as the preeminent value in many modern constitutions and various human rights documents. Particularly in countries that have extensive welfare states, dignity is often about being part of the community, being protected and provided for by the government. In America, however, political and legal discourse link dignity with individual rights and freedom from interference by the State. In this short Essay I explain how different concepts of dignity reflect fundamental disagreements about welfare rights and highlight aspects of American exceptionalism. The traditional American conception of human dignity may resist welfare rights, as can be seen in the current debate about whether and how government should expand healthcare coverage.
Many thanks to Steve for his observations in re my Sunday query. I'll think more on the matter in light of his observations, as well as such others as might be offered by others; and if anything provisionally good comes of that thinking I'll come back to the matter here.
While here at present, however, I'd also like quickly to take up Steve's final point. For I've wanted to say something similar now for the last couple of weeks, but have refrained from so doing in order to keep my points simple until time might permit broader, while one hopes still relevant, observations on our courts' first amendment (1A) jurisprudence. Two observations for now, then:
First, the term 'accommodation' as used in 1A contexts, again if I've got my recent religion clauses history right, stems from cases like Yoder in which courts have found in favor of religious groups seeking exemption from laws of general application. I'm accordingly a bit queasy about uses of scare-quotes round the term in some of our recent posts. For these might be taken to suggest that the employers of those punctuation marks are attributing to the President some arrogant belief that he is doing something magnanimous or supererogatory, rather than something for which he as a constitutional lawyer knows there is precedent - under the Court-supplied term 'accommodation' - in free-exercise-protective caselaw. I assume that the actual reason for the scare-quotes as found here thus far has to do with skepticism as to how accommodating the revised HHS mandate actually is. But of course in that case I am still hoping for verification in actual regulatory text that the skepticism - in which I would joint under previously specified circumstances - is indeed warranted.
Second, it seems to me that Steve might be right that the least accommodating Supreme Court Justice, where calls for exemption from neutral and generally applicable laws are concerned, has in recent decades been Justice Scalia. (No?) Surely the opinion in Employment Division v. Smith is the very type of the eye-rolling, 'gimme a break' style expression of impatience with putative 'special pleading' on the part of religious organizations. Unless that be the Justice's imitation of Desi Arnaz singing 'Babaloo' when talking about the Church of Lukumi Babalu Aye case of the early mid-'90s, to a mixed audience of which I had the mixed fortune of being a member.
But Justice Scalia might not be alone now, either. For in seeking to distinguish rather than overturn Smith, with which our Court's recent Hosanna-Tabor decision seems to rest in considerable tension, Chief Justice Roberts informs us that sacramental use of peyote as in Smith, unlike firing a disabled teacher notwithstanding the anti-discrimination requirements of the Americans with Disabilities Act as in Hosanna-Tabor, amounts to 'only outward physical acts.' What ever we might make of that not altogether convincing distinction under the precedents, one wonders whether the Chief Justice might now be willing to say the same of some hypothetically reinstated rendition of Prohibition not prompted by anti-Catholic Protestants as was the earlier one, were it enforced against sacramental wine-imbibing on Sundays along with other imbibing on other days. (I'd like to think he would find a way to enforce 'accommodation.')
Like Steve I'm inclined to observe, then, that insufficient respect for religious ethics and practices in the enforcement of neutral and generally applicable laws is as 'bipartisan' or non-partisan as was the recent concern over rendition 1 of the HHS mandate.
Sunday, February 12, 2012
In partial response to Bob's question, According to the Bishops, "It [the Obama revision] would allow non-profit, religious employers to declare that they do not offer such coverage. But the employee and insurer may separately agree to add that coverage. The employee would not have to pay any additional amount to obtain this coverage, and the coverage would be provided as a part of the employer's policy, not as a separate rider."
The Bishops apparently are objecting that the contraception insurance is not a separate rider."See http://usccb.org/news/2012/12-026.cfm
Even assuming the Bishops are correct in their characterization, this objection seems excessively precious to me. It seems to exalt form over substance. I do not see how this distinction gives rise to a morally serious objection involving religious freedom.
On the other hand, I do not believe the Obama revision applies to private for profit employers with religious objections. Although I recognize that by subscribing to the Taco Bell example, I will be thought by most people to have walked into outer darkness, I think it appropriate to honor those objections, if, but only if, there is no economic incentive for employers to make the objection. An employer (including religious hospitals and universities) should not economically benefit from a religious exemption. As I have previously argued, see here, the employers should be required to increase employees' wages by the amount the employers save because of a religious exemption. (With the possible exception of a very closely held business corporation, I would not expect that business corporations would have consciences to invoke).
The Bishops are concerned about self-insuring employers with religious objections and religious insurance companies. With respect to the former, I wonder how many of these are individuals who have consciences and how many are business corporations that as artificial entities who do not. If they are individuals with a good faith objection, I would compel them to increase wages by the amount they would save from a First Amendment exemption and have the government provide social insurance.
As to the latter, I would like to know about religious insurance companies. I have not heard of them. My tendency is to think that business corporations have no free exercise rights, but if there is an unincorporated insurance company run by a private person, I would balance the free exercise interest against the government interest, and the possibility of alternatives. But I think more facts are needed here to analyze the factors.
I conclude by noting again the irony that amidst the internet explosion surrounding Obama's insensitivity to free exercise interests that little attention has been paid to the fact that the award for constitutional insensitivity to religious freedom still belongs not to President Obama, but to the conservative's favorite justice: Antonin Scalia.
Within the last day, the suits against the Holy See, the Pope, and Cardinals Sodano and Bertone (past and current Secretaries of State) have been withdrawn by Jeffrey Anderson and Marci Hamilton, attorneys for the Plaintiffs in the sex abuse cases involving children at the Milwaukee-area school for the deaf during the period 1950 to 1974.
The Vatican Radio announcement about the withdrawals is here.
Plaintiffs' counsel had relied on the so-called "smoking gun" of the 1922 document Crimen Sollicitantionis; however, reliance on this document involving the seal of the confessional was unfounded. It was also problematic for plaintiffs' counsel to argue incessantly that those allegedly responsible for the torts and crimes against the children were "employees of the Vatican."
I am certain that more will be said about these withdrawals and their impact on Mr. Anderson's and Professor Hamilton's efforts to implicate the universal Church. But, for the time being, fact and reason appear to be focusing these cases where they should be.
RJA sj
I've a quick question for Rick, Robby, Carter, and others of my friends who have signed the forceful letter to which Rick and Robby have referred this morning. I pose it because I do not yet know what to make of or opine in respect of Friday's 'walkback' announcement, and could use assistance in coming at least to a provisional verdict.
For present purposes, I can envisage two distinct scenarios that the revised HHS mandate might, well, mandate. (If there are alternatives that I ought to be considering, do please somebody let me know.)
Per one such scenario, a religiously affiliated employer is required, like all other employers under the ACA, to purchase one health insurance policy covering all of its employees, which policy covers contraceptive pharmaceuticals and devices. The employer is then 'accommodated' (which term I believe stems from the Surpeme Court's Amish-defending Wisconsin v. Yoder decision of 1973, right?) by not being required to inform its employees of the latter coverage, that role being assigned to the insurance company.
Per the other such scenario that I envisage, the religiously affiliated employer is accommodated a la Yoder by being required, unlike other employers, to purchase a policy for its employees that need not cover contraceptives, while the insurance company is then separately required to provide to the same group of employees a second policy that does cover contraceptives.
The first scenario, which the present wording of the aforementioned letter appears to me to suggest is the actual scenario with which Friday's White House announcement presents us, would seem pretty clearly to warrant the damning language employed by the letter, if not indeed worse. For it then would amount not even to anything so exhalted as an 'accounting gimmick,' but instead to a mere 'speak no evil ['evil' being defined by the institution]' allowance.
One can imagine variants of the second scenario, by contrast, that might well not warrant such criticism as that offered by my friends' letter, at least not absent an account of what sorts of accounting arrangement constitute mere gimmickry devoid of moral substance and what sorts do not.
(I have, for example, since well before the Supreme Court effectively constitutionalized the argument, often defended flows of education and health grant funds from the public fisc to religiously affiliated schools, hospitals, and other social service organizations as consistent with non-establishment, on the ground that, accounting-wise, they amounted to equal pro rata shares provided for the benefit of the clients of these institutions, which equality rendered the clients' choices 'intervening' choices of precisely the sort that 'cleanse' government funds of 'endorsement' significance.)
Might Rick, Robby, Carter, or somebody else here, then, clarify for me (a) whether the revised mandate mandates some such scenario as the first I described rather than the second, and (b) where I might find detailed verification of this if indeed it does? If, instead, the revised mandate mandates some variant of the second scenario that I described, might somebody clarify for me (c) what the particulars of the variant are, (d) where I might find those, and (e) whether any variant on this second scenario would be permissible in their view?
I pose the last query - (e) - partly because, if the answer is no, I might have to abandon an argument that I quite often employ in defense, against what I currently believe to be spurious 'establishment' charges, of public funds' being directed to religiously affiliated schools, hospitals, and other social service agencies.
I pose the full set of queries - (a) through (e) - because I wish both to come to an informed judgment of the HHS mandate, and to ensure that I hold a coherent general account of how we as a nation might maintain our eclectic amalgam of mixed public-private social insurance and safety net provision on the one hand, without running aground on the Scylla of establishment or the Charybidis of curtailed free exercise on the other hand.
(Apropos this latter point, by the way, it is tempting once more to suggest that direct public provision of health insurance might solve the conundrum where health care is concerned much as does public provision of education, pension insurance, and unemployment insurance funding where those public goods are concerned. (It is, after all, still yours truly who is writing this, still smarting over the Administration's never having seriously pressed for 'single payer' or, it seems, the 'public option' as it ought in justice to have done.)
Many thanks.
StatCounter
PageViews
Since February 19, 2008
