Tuesday, October 30, 2012
Gedicks on religious freedom and the HHS mandate
Michael Perry links here to my friend Fred Gedicks's "Policy Brief", done for the American Constitution Society, on the HHS mandate. I think the world of Fred and his work, but his policy brief misses the mark in a number of important respects. (I wonder if Michael agrees with Fred's arguments?)
Obviously, the paper is intended to be a "policy brief", and so there's no reason to expect it to deal comprehensively with the matters covered. But, Fred is too quick to conclude -- indeed, he is wrong to conclude -- that the mandate does not impose a substantial burden on the religious exercise of at least some religious employers who are currently subject to the mandate. And, he is wrong in asserting that requiring these employers to provide the coverage in question is, within the meaning of RFRA, the least restrictive means of achieving the government's interest. And, he is wrong (though this is obviously a "deeper" question) in his assertion / assumption that "access to contraception" -- when "access" means "provision at someone else's expense", as opposed to "legal access" -- is a "fundamental" right or liberty.
What's more, it is a mistake to contend, as Fred does, that a religious employer seeking to exercise its religious-freedom right not to provide the coverage in question is burdening the religious liberty of employees who (i) desire the coverage and (ii) have no moral or religious objection to contraception or sterilization.
I have elaborated on these points in various places, and won't impose them on readers again. But, I do regret being on the other side -- the correct side, in this case, but still the other side -- from Fred on this one.
https://mirrorofjustice.blogs.com/mirrorofjustice/2012/10/gedicks-on-religious-freedom-and-the-hhs-mandate.html
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Geddicks makes another fundamental mistake when he says "access to contraceptives is also fundamental. Such access, moreover, is a critical component of the well-being and advancement of women, enabling them to time and space their pregnancies, thereby enhancing their own health (and that of their new-born children) and facilitating their participation in the workforce on more equal terms with men." There is no evidence that women are having trouble getting contraceptives due to cost. With the proliferation of Title X clinics as well as the low cost of generic contraceptives, women can obtain contraception for the cost of two Starbucks lattes per month. As a physician I can tell you that no professional medical association claims that contraception is essential to women's health. Their use is a wholly elective lifestyle choice for women who want to be sexually active and avoid pregnancy and who have weighed the extensive side effects of contraception and choose to use them anyway. As a woman, I can tell you that is extremely insulting and demeaning to say that unless I make myself physiologically like a man, I cannot succeed in America. On the contrary, I know numerous successful women who have managed to keep their fertility intact. Womanhood is not a malformation. Fertility is not a disorder. Pregnancy is not a disease. I have discussed this further here. http://www.truthandcharityforum.org/obamas-equality-and-liberty-for-women/