Sunday, April 3, 2016
Thank you to Michael Perry for directing us to the recently posted paper by Professor Kaveny on "The Case of the Little Sisters of the Poor." I haven't carefully considered the precise claims in Profeesor Kaveny's paper yet, but I've seen enough to post with questions now.
The abstract alone puts me on the defensive. In it, Professor Kaveny charges that "the exigencies of litigation have required the plaintiffs to distort Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others." Further, "[t]his distortion has prevented them from helping to discern what sorts of conscience protection are appropriate for all of us in an interdependent and pluralistic constitutional democracy."
These claims hit home because I represent the Little Sisters of the Poor, and have since the beginning of this saga. In so doing, I have tried my best to draw on an accurate understanding of Catholic moral theology and federal law.
I initially tried to help the Little Sisters avoid going to court. After President Obama expressed openness to an expanded exemption, we filed comments explaining why the Administration's initial offerring was unacceptable. Those comments drew directly from the Little Sisters' public statements -- statements that were written, I unfortunately need to add, without the input of any lawyers or PR types.
I failed ... and the government failed us, by promulgating revised regulations that remained problematic.
The Little Sisters wanted to stay faithful both to their religious mission and to federal law. RFRA, among other provisions of federal law, was on their side. And so the case came.
We ended up in court--with more, and more suitable, lawyers--because the regulations required the Little Sisters to arrange their health benefit plans contrary to how they had arranged them for years in compliance Catholic social teaching. The contraceptive mandate threatened to alter the status quo the Little Sisters had maintained for many years successfully, for many years without controversy, and until then without breaking federal law.
The Little Sisters' alleged misunderstanding of "Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others" (in Professor Kaveny's words) predates by decades the Obama Administration's controversial implementation of the women's preventive health services provision. As I read Professor Kaveny's paper, then, here are some of the questions that will be on my mind:
(1) Have the Little Sisters of the Poor always misunderstood "Roman Catholic moral teaching" in arranging their health benefits to exclude contraceptive and abortifacient coverage?
(2) If the Little Sisters' pre-existing health benefits arrangements rested, instead, on a proper understanding of "Roman Catholic moral teaching," what was it about the Obama Administration's regulation that altered the analysis under Catholic moral theology?
(3) Does it matter to theological analysis of compliance with this regulation whether it was promulgated in violation of a federal statute, namely the RFRA?
(4) If Professor Kaveny had been a lawyer advising the Little Sisters of the Poor when the initial regulation had been promulgated, would she have advised them to roll over and abandon their longstanding arrangements? What, concretely, would she have advised?
(5) If it is to be regretted that "the adversarial nature of the legal process has pressed [the Little Sisters of the Poor] to understand both their own obligations and those of the government in a binary manner," who is more responsible for this state of affairs: (a) the Little Sisters and their lawyers, or (b) the Administration and its enablers?
Saturday, April 2, 2016
Cathleen Kaveny, the Darald and Juliet Libby Professor at Boston College--holding appointments both in the School of Law and in the Department of Theology--has just posted to SSRN an excellent paper: Law, Religion, and Conscience in a Pluralistic Society: The Case of the Little Sisters of the Poor. You can download the paper here.
Friday, April 1, 2016
As Rick notes below, this week, the Supreme Court issued a somewhat unusual order in Zubik v. Burwell (the nonprofit litigation against the Obamacare contraception mandate) asking for more briefing. Here are the substantive provisions:
The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.
Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.
For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.
I can’t improve on Rick's insightful speculation about what this might mean. It’s hard, as he says, to escape the conclusion that this is probably good news for the petitioners (after the bad news of Justice Scalia’s passing). And it’s always the politically expedient thing to put the onus on insurance companies. Let them figure out how to comply.
But there is one way in which the order might not be so good from the claimants’ perspective. What of self-insured claimants? Any resolution to the case that would simply rely on insurers to resolve this issue would not account for those nonprofits, like the Little Sisters of the Poor, who self-insure. Shifting the (substantial) burden of compliance to the “insurer” in this sort of case is not really shifting it from the employer or from an objecting party.
Something perhaps to watch in the upcoming briefing.
I've blogged many times over the years in response to a claim that is often tossed around but is no less irritating, and no more persuasive, for its familiarity, i.e., that it's "hypocritical" of pro-life people to not support "murder" prosecutions of women who undergo abortions. This piece, by Ruth Marcus, is just the latest. For writers even a little bit familiar with the basics of Criminal Law, or who are willing to do just a little bit of research into the history of abortion regulation and abortion-related prosecutions, the claim is easy to debunk (and, therefore, should not be so often lobbed by otherwise well-informed writers).
UPDATE: Mark Silk makes, I think, a similar mistake in this piece. He says:
The obvious truth in this case has to do with the pro-life position that abortion is murder. For if that’s the case, how can a woman who voluntarily obtains one not incur some criminal liability?
What's "obvious," though, is that "murder" is a legal term of art -- one that has long reflected fine-grained distinctions regarding the state-of-mind of a person who causes another person's death. It is utterly unremarkable and completely common for the law to treat some homicides as non-criminal wrongs. And, it's neither "hypocritical" nor (in Silk's words) a "lie" for pro-lifers to endorse a legal approach to the particular and complicated wrong that is abortion that deals with some contributors to the wrong (e.g., the doctor, the pharmacist, etc.) using the criminal-law method and with other contributors in other ways.
For more, here's Robby George; here's Charlie Camosy; and here is Kathryn Lopez (with links to many others).
Thursday, March 31, 2016
For those who aren't First Things subscribers, but are interested in reading Yuval Levin's outstanding essay, "The Perils of Religious Liberty," it's now up on the EPPC website.
An interesting survey, with implications for how Christians speak in public discourse and in particular how they present claims of religious liberty:
A growing number of Americans believe religious liberty is on the decline and that Christians face growing intolerance in the United States.
They also say American Christians complain too much. In agreement: two out of five evangelicals, both when measured by beliefs and by self-identity.
Wednesday, March 30, 2016
Here is the Court's order. Lawyers, pundits, and blog-readers everywhere are wondering what it means. Until I get the authoritative answer from our own Kevin Walsh, I'm inclined to think -- in the spirit of Sports Illustrated's Peter King, perhaps -- the following:
(1) I infer that Justice Kennedy did not join the Hobby Lobby dissenters (and, perhaps, one of them wobbled, too) on the gov't's argument that this case fails at the threshold (because the "substantial burden" argument is too "attenuated"). I take that as good news for the RFRA regime generally. While I understand the concern that Doug Laycock and others have raised -- i.e., that requiring "absolute deference" to RFRA claimants' on the "substantial burden" element will undermine religious accommodations generally -- I do not think that the Little Sisters et al. are asking for such deference.
(2) I infer that at least one of the Hobby Lobby dissenters is sufficiently concerned about avoiding a "tie" (in a case where the lower courts are themselves divided) that he or she is willing to at least consider letting the Little Sisters win *if* that can be done without interrupting the "seamless" flow of contraception coverage.
(3) But . . . it does not seem plausible that the government actually has a "compelling interest" in completely "seamless" coverage (as opposed to coverage-without-cost-sharing-via-some-reasonable-means). I expect at least some of the parties will argue that, if the coverage is provided to their employees, by their insurance companies, by virtue of the fact that the companies and the employees are theirs, then their religious exercise is burdened. (I could be wrong about this, of course.) And, I expect at least some of the parties to argue that the existence of the exemption for religious institutions (churches, etc.) puts a heavy burden on the government to show why such an exemption cannot be provided to them.
Meanwhile, in news stories and headlines everywhere, the "scare-quoting" of religious freedom continues . . .
Monday, March 28, 2016
I learned over the weekend about the death of the founding dean of the Ave Maria School of Law, Bernard Dobranski. Here is the notice from Ave Maria. May God bless him and his family. R.I.P.
