The plenary session on this second day of the Petrie-Flom Conference on Law, Religions and Medicine was a debate between Adele Keim (Becket Fund for Religious Liberty) and Gregory Lipper (Americans United for Separation of Church and State).
Keim made three points in her remarks. First, that religious diversity is good for health care and conscience protection allows that diversity to flourish. Religiously motivated health care providers continue to be part of care landscape in this country - something that is not inevitable - because they have been permitted to operate as communities of faith (e.g. being allowed to hire employees of their faith) and because historically we have been willing to work hard to avoid widespread and foreseeable conflicts of conscience, have been especially sensitive to conscientious objections to the taking of human life. This has allowed religious people to continue to provide important services.
Second, the HHS regulations assault both of those background principles, failing to respect the principle that religious nonprofits have a deep interest in preserving the character of their religious communities and coerces them to provide drug they believe involves the taking of human life. (She then spent time talking about the history of the mandate and the Hobby Lobby litigation.)
Third, the third party harm arguments used to justify the mandate are one-sided and it is reasonable to expect that one consequence of forcing compliance is that some religious organizations will close entirely. It is important when considering harms to acknowledge the lasting harm the mandate will do if entities like Little Sisters leave health care entirely.
Lipper also made three points. First, religious opposition to the contraception mandate provisions are as much about ideological opposition to the Affordable Care Act itself as about religious objection. He suggests the sincerity doctrine has been underutilized in these cases and that the fact that many of the plaintiffs in the for-profit cases had been providing contracpetion coverage prior to the mandate suggest that this is about the broader political objection to health care reform.
Second, he argued that even if the objections are sincere, Hobby Lobby represents a dramatic expansion of the substantial burden doctrine and a cramped understanding of least restrictive means. On the former, if substantial burden is measured by the size of the fine there is no limiting principle. On the latter, if the government's ability to provide the benefit itself means there is a least restrictive means, virually anything can be provided by the government.
Third religious accommodation are now being wielded, not as attempt to compromise, but as a trump in way that accept no compromise. And that, he suggests will lead to evaporation of support for religious liberty, a backlash that is already being seen.
In an earlier panel this morning, Holly Lynch did an effective job defending the majority opinion in Hobby Lobby. But my biggest agreement with her is her final conclusion that Hobby Lobby lays bare the real problem of the ACA: a failure to move away from an employer based system of providing health care benefits.
Friday, May 8, 2015
The panel on which I spoke this afternoon at the Petrie Flom Conference on Law, Religion and Medicine was titled Religious Beliefs and the Health of the LGBT Community. Shawn Cirncoli spoke about provision of health care to transgender persons and potential claims of religious exemptions. Craig Knooth spoke about sexual orientation change therapy cases, suggesting that such therapy should be viewed as a form of religious ministry, with the result that prohibiting SOCE within the scope of a licence vindicates Establishment Clause concerns.
Although recent discussions concerning religious objections to same-sex relationships have focused on the question of whether businesses can assert a religious claim that would allow them to opt out of participation in same-sex marriages, the issue I addressed in my paper for the conference relates to the training of students planning to enter counseling professions. How should graduate schools training students to become psychologists, social workers or counselors deal with students who object on religious grounds to counseling homosexuals about their relationships, or at all? Can a student’s religious opposition either to counseling homosexuals at all or to counseling them in ways that affirm their homosexual relationships can be accommodated in their graduate counseling training, and if so, how? I argued that the religious views of those who wish to enter the counseling professions can be respected in a manner consistent with the primary objective of an educational institutions in training counselors in a manner that protects the interests of those who seek counseling.
I should note that you can find a link to the Dropbox file with all of the papers from the conference here. Hopefully my short descriptions here will prompt you to do that.
The second panel at the Petrie Flom Conference on Law, Religion and Health in America addressed health care institutions.
Ryan Meade argued that hospitals cannot have a conscience because they do not have an intellect and will. His interest was not in addressing what kind of religious accommodations should or should not be granted (in fact he favors religious liberty), but rather the use of language of conscience. His fear is that we lose what conscience means by imprecise use of language.
Elizabeth Sepper addressed the extent to which institutions that are no longer Catholic in their operation or ownership continue to be bound by restrictions on services through contract. Because of contract, institutions affiliated with other faiths and institutional investors devoted to the pursuit of profit assume a religious mantle. The results is that religious identity survives in "zombie form," while the justifications for its existence (the affiliation with a religious body or the religious beliefs of its founders, directors, or employees) no longer hold true. She sees no value in allowing that perpetuation.
David Craig argues that organizations can claim free exercise protection, not on the basis of individual's religious belief, but on the basis of an integrated religious mission. He suggests three ways of mission integrity: (1) Associational buy-in test: employees and customers demonstrably affirm corporate religious mission, e.g. employee training, commercial advertising. (2) Worker welfare: do employees holistically benefit from corporate religious mission e.g. through compensation, benefits. (3) Public service test: does corp advance public interests through its acts consistent with its religious mission? Based on how fully Catholic hospitals implement respect for life throughout theeir practices, he would provide accommodation to Catholic hospitals, but not to Hobby Lobby.
The Petrie-Flom Conference on Law, Religion and Medicine opened this morning with a plenary address by Doug Laycock, who suggested that the Supreme Court's decision in Hobby Lobby has been greatly exaggerated by both the winners and the losers. He views the decision as a narrow one, given its basis on the fact that the government already had established a means to address providing contraception to employers of religious organizations and also suggested that the extension of RFRA to businesses did nothing new. (Among other things, he discussed the debates surrounding the failed Nadler amendment to RFFA, which suggested all sides thought businesses were covered.)
Following the plenary address, the first panel was titled Opening the Conversation: Testing the Scope of Legal Protections for Religions in the Health Care Context and featured papers by Leslie Griffin and Sam Levine.
Griffin believes that medicine and religion have different goals and that too much of medicine today is based on religion rather than health, identifying as problems in her view the growth of conscience clauses, what she calls an exemption regime, and the substantive content of much of health law. Her claim is that the discussions we have would be different if our starting point was health and medicine rather than religion. What exactly that means and how the discussions would be different was not apparent to me from her talk.
Levine's talk addressed the Supreme Court's "hands-off" approach to religion, suggesting that there are four related by conceptually distinct forms of inquiry. First, the sincerity of religious claim. Courts do have authority and obligation to evaluate whether an individual is sincerely asserting its religious claim. While difficult at times to assess, one cannot clam a religious right absent sincerity of the religious claim. Second, is the metaphysical truth of religious claim. This is where courts have and should take a hands off approach. Third, as a corollary, courts have likewise refused to consider consistency or accuracy of claim. Courts should not look at the views or co-religionists or even the consistency of the claimant's actions. Fourth, review of the law;s effect on religions. Courts do evaluate that and RFRA requires it. What Levine thinks is less clear is whether the court has to defer to the religious adherent's claim of the extent to which the law burdens religion.
