The Jarndyce v. Jarndcye of Church-State Cases

The Contraception Mandate is back at the Supreme Court

|The Volokh Conspiracy |

The Contraception Mandate litigation is the Jarndyce v. Jarndyce of church-state cases: a lawsuit, or, rather, collection of lawsuits, that seems to go on and on without ever reaching an end. True, unlike the Bleak House original, the Contraception Mandate litigation isn't making anybody rich. But in its capacity to draw in numerous parties and lawyers and maintain its place on the Supreme Court docket for years, the litigation does seem a bit Dickensian.

The litigation began in 2011, when the Obama Administration promulgated regulations under the Affordable Care Act that required employers to cover contraceptives, cost-free, in their employee health plans. The Obama Administration exempted churches from the Mandate and, after it received complaints, grudgingly offered religious non-profits an "accommodation." A religious non-profit could avoid the Mandate, and forgo covering contraceptives in its plan, if it filed a form indicating that it objected to covering contraceptives as a matter of religious principle, in which case the plan's provider would have to cover the contraceptives itself, without cost to employer or employee.

Neither the exemption nor the accommodation applied to for-profit corporations. Nonetheless, in Burwell v. Hobby Lobby (2014), the Court ruled that the government must grant an accommodation to closely held, for-profit corporations that objected to covering contraceptives for religious reasons. The Court did so under the Religious Freedom Restoration Act (RFRA), which provides that the government cannot substantially burden a person's exercise of religion unless the government has a compelling reason for doing so and has chosen the least-restrictive means. Requiring a closely held corporation to cover contraceptives would violate RFRA, the Court held, since a less-restrictive alternative was available. The government could offer for-profits the accommodation it offered religious non-profits—submit a form and have your plan's provider cover the contraceptives—which would achieve the government's interest in ensuring access to cost-free contraceptives without infringing on employers' religious freedom.

Meanwhile, in a separate litigation, some religious non-profits were challenging the accommodation itself. These parties, including a Catholic order called the Little Sisters of the Poor, argued that the accommodation itself violated their religious freedom, since, by submitting the required forms to their plan providers, they would still be complicit in the act of offering contraceptives to their employees, an act they considered gravely immoral. As a matter of religious conviction, they maintained, they could not participate, even indirectly, in such plans.

This litigation also reached the Supreme Court, in a 2016 case called Zubik v. Burwell, in which the Court took a rather unusual step. Rather than reach a decision on the merits, the Court remanded the case and directed the lower court to give the parties another chance to settle their dispute, since the parties' positions were, as a practical matter, not so far apart. Religious non-profits would not object if their insurance providers offered contraceptives through independent plans, and the government admitted that this arrangement would achieve the objective of providing women with contraceptives cost-free. The solution to the dispute seemed obvious.

That's where things stood when the presidential election of 2016 brought a new administration to power. Elections have consequences. The Trump Administration
wrote new regulations that extended the exemption for churches to religious non-profits like the Little Sisters. Under the new regulations, religious non-profits, like churches, were no longer subject to the Mandate.

One might have thought that would bring the Mandate litigation to an end. It did not. The Commonwealth of Pennsylvania now sued, arguing that the federal government lacked authority to issue the new regulations, either under the Administrative Procedure Act or under RFRA. The Little Sisters of the Poor then sought to intervene to defend the new regulations. The litigation continued, with the parties having switched roles. Religious non-profits now found themselves on the side of the federal government.

This new case, Little Sisters of the Poor v. Pennsylvania, is now before the Supreme Court, on cert from the Third Circuit. The case presents a few complicated issues, including questions about state standing, appellate standing, administrative procedure, and nationwide injunctions. The case also raises an interesting, and new, RFRA issue. In the current case, the question is not whether RFRA requires the federal government to grant an accommodation. The question is whether RFRA allows the federal government to grant an accommodation broader than the one the Court already has authorized. As Kevin Walsh observes in a recent Legal Spirits podcast, this is a question with potentially big implications for church-state law.

Why does the Mandate litigation go on and on? As I said, it's not a question of money. Lawyers are not getting rich on these cases. The litigation continues because people care deeply, as a matter of principle, about the result, and because each side views the other as an existential threat. For proponents of the Mandate, it's about women's health and equality, and about beating back the obscurantist forces that threaten both. For opponents, it's about affirming their deepest faith commitments, notwithstanding pressure from the state and progressive opinion that seeks to crush them. Even when a practical solution seems available—as the Court noted in Zubik—the parties find it difficult to compromise. The symbolic stakes are too high.

In short, the Contraception Mandate litigation, like so many other disputes over law and religion, reflects the deep polarization in our society. As long as that polarization continues, cases like Hobby Lobby, Zubik, and Little Sisters will continue to arise—as well as cases like Masterpiece Cakeshop, Fulton v. City of Philadelphia, and many others.

The Court was supposed to hear the Little Sisters case this month, but postponed argument because of the coronavirus epidemic. The Court will decide the case at some point in the future. When the Court does issue its ultimate decision, whenever that occurs and however the Court rules, that should end the Contraception Mandate litigation once-and-for-all, right? What could remain to be decided?

Don't count on it.

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  1. “Elections have consequences.”

    That observation, over time, seems likely to resolve all of these issues.

    I’m counting on it. And I am content.

    1. An honest question then for you, since you have toned down your fake persona for a (blessedly) short spell?

      What say you if Trump wins?

      1. That “the arc of the moral universe is long, but it bends toward justice.

        1. You’re a optimist? From that perspective, I’m hoping Trump wins reelection myself.

      2. Can’t speak for Arthur, but assuming he again lost the popular vote, which appears very likely at this point, I would say that whether an election has consequences has little to do with whether it was a fair election or a stacked deck election.

        1. A win or loss in the popular vote only counts toward political capital and being able to claim a “mandate”. The 270 electoral votes are what matters, and it’s why Hillary is taking long walks in the woods right now.

          That said, what do you mean by “fair election” or “stacked deck” election? Could you elaborate?

          1. You are correct that under the rules, 270 votes in the electoral college is the only vote that actually counts. But what the rules say, and what constitutes a fair election, are not the same thing. If the rules said that Democrats will hold power in perpetuity, I doubt that you would consider that a fair system.

            By stacked deck, I mean that the rules favor one party over another. The demographics are that 40% of the country can exercise a veto over what the other 60% want. (If I recall correctly, in a two party election it is possible for one candidate to win the electoral college while only getting 37% of the popular vote.) I do not believe that the procedural rules should favor one party or one ideology over another. The procedural rules should be party neutral and ideology neutral. And the fact that your side couldn’t win such an election is not an argument to the contrary.

          2. “Stacked deck” = structural amplification of rural, backward votes.

            1. No, not really. While it’s true that states with particularly small populations end up with a tiny bit more representation in the EC than states that have large populations, on average, the quantization noise inherent in changing numbers of representatives means this is only true on average. And the smaller population states are not all rural, and not all conservative.

              The ten least populous ‘states’ are Wyoming, Vermont, DC, Alaska, North Dakota, South Dakota, Delaware, Rhode Island, Montana, and Maine.

              Does DC strike you as particularly rural or conservative?

              Trump carried Wyoming, the Dakotas, Alaska, half of Maine, and Montana. Hillary carried Vermont, DC, Delaware, Rhode Island.

              As it happens, party preference and the ratio of population to EC votes hardly correlates at all. The reason that Hillary carried the popular vote and lost the EC isn’t the EC structure, but that she utterly dominated the popular vote in California. That state provided all of per popular vote margin and then some. But getting 2/3 of the vote in California didn’t get her any extra EC votes.

              Your real complaint here isn’t structural amplification of rural votes. It’s winner takes all.

              1. Bingo! We should award electoral college votes in proportion to the statewide popular vote, subject to a 15% minimum to get any votes.

              2. Brett, you have a point, but I don’t find it compelling because the bottom line still is that a Wyoming voter’s vote carries far more weight than a Brooklyn voter’s vote. The electoral college would be unconstitutional on that ground alone if it hadn’t been written into the text of the Constitution itself.

                I’m actually far more concerned that if current demographic trends continue, in 20 years’ time 35% of the population will be electing 70% of the Senate, a result I doubt the framers foresaw. (And no, having state legislatures elect the Senate would not fix that problem because you would then have the representatives of 35% of the population electing 70% of the Senate.) I’m not sure I agree with Arthur that given enough time, progressives will re-take the government. Between the EC, two senators per state regardless of population, and gerrymandered House districts, the conservatives may have managed to acquire power in perpetuity, absent a major catastrophe. Even though fewer and fewer people support conservative ideas.

                1. If every state’s number of electors were based on population (e.g., Wyoming had 1 electoral vote and California had 65), Trump would have won 303-235 instead of 306-232 (ignoring faithless electors). If electors were allocated in proportion to the statewide popular vote with the exisitng number of electors per state (e.g., Wyoming with 3 and California with 55), Clinton would have won 272-265-1 (McMullen gets 1 Utah elector).

        2. “he again lost the popular vote”

          First off, the popular vote is meaningless — it is a FEDERAL election by the STATES.

          Second, what about the California counties where upwards of 110% of those eligible to vote actually voted? That’s inherently fraudulent.

      3. I would say that people tend to get what they deserve; that the march of progress is neither of steady pace or without setbacks; and that the eventual backlash would likely be intensified by another Trump term.

        The underlying fundamentals — an electorate and nation continuing to improve predictably against Republican preferences and prospects — seem strongly unlikely to change.

        Does anyone genuinely expect America to become more rural? More religious? More backward? More white? More intolerant? If not, the Republican Party must change or die.

        I vote “die.”

        1. Thank for your answer, even if you just couldn’t resist putting on your stage makeup. You’re but a poor player that struts and frets his hour upon the stage..

          If Trump is reelected the people get what the deserve. The march of the future away from the collectivist urban progressive globalist values that demeans human life and individual dignity. For a time at least. Collectivists such as yourself are like Jason from the horror movies.

          Oh, just a thought. We live in a system that, due to winner take all elections, means that there will be always two parties. Have you thought that one through a bit? If the GOP tomorrow became as liberal as yesterday’s Dems, would they be your new bad guys? Or would that not be liberal enough?

          1. I would welcome a party of conservatives featuring less influence among bigots, gun absolutists, anti-abortion absolutists, religious fundamentalists, and people pining for illusory good old days — perhaps a return to a Republican Party that favored reason, science, tolerance, limited and competent government, competence, progress, reality-based education, humility in foreign affairs, fiscal responsibility, environmental protection, and general modernity.

        2. Does anyone genuinely expect America to become more rural?

          It already HAS — and is likely to remain so.

          More religious?

          Yes. A Great Awakening is coming…

          More backward? More white? More intolerant?

          There is growing evidence that many ethnic groups are becoming “White” in terms of values & voting. As to the rest, |/dev/null

          1. Reported American population increases, 2000-1016:

            suburban 16 percent
            urban 13 percent
            rural 3 percent

            Rural areas are growing — slowly — but the important point is that America’s population appears to be becoming less rural because suburban and urban counties are growing substantially faster.

          2. Reported religiosity in America is congruent with my observations of closed churches, consolidated religious schools, and a general decline in organized religion. Gallup headline (one-link maximum): “U.S. Church Membership Down Sharply in Past Two Decades.”

    2. It worked so well in 1860, didn’t it???

    3. Yes, elections have consequences — and with Trump and the GOP winning in a landslide this fall, Mental Health Parity is going to be the next shoe to drop.

      Have no doubt, there is going to be a major mental health crisis coming out of just the quarantines, let alone the dramatic increase in unemployment. Suicides are going to increase dramatically, and we well may lose more people to suicide than to the Wuhan Virus…

      The mental health industry has a gay litmus test (which I believe extends to transgendered, and that will be interesting) and the same religious objection is going to be raised. Leviticus 18:22 says “Thou shalt not lie with mankind, as with womankind: it is abomination.” — that’s both in the Torah and the Bible, and the Koran holds a similar position.

      So the religious employers are going to insist on the “mental health parity” go to professionals who share their religious values — who do not exist — and the employees are going to ask likewise. Watch for a demand that “mental health parity” include pastoral counseling — that will be interesting.

      And all of this in an environment where health insurance in general will be increasing dramatically — it’s going to have to unless they get bailed out too. Congress will have a big incentive to slice out “mental health parity” for budgetary reasons alone.

      1. So the religious employers are going to insist on the “mental health parity” go to professionals who share their religious values — who do not exist — and the employees are going to ask likewise.

        None of them? There are no Catholic, Baptist, Jewish, etc. psychiatrists and psychologists or other counselors?

        And how the hell does an employer get to tell an employee what religion the employee’s therapist must adhere to? That’s insane.

      2. “Leviticus 18:22 says “Thou shalt not lie with mankind, as with womankind: it is abomination.” — that’s both in the Torah and the Bible, and the Koran holds a similar position.”

        That means as much as an Animal House or Caddyshack quotation in reasoned debate among competent adults.

      3. “…religious employers are going to insist on the “mental health parity” go to professionals who share their religious values — who do not exist…”

        They exist, and it’s a travesty. My ex-wife suffered from episodes of major depression, and had been on multiple occasions admitted to every local facility which dealt with such conditions. In one of those institutions on two occasions, she had been under the care of just such a psychologist. His “treatment” and “counseling” was just shy of exorcism (though he was some flavor of Protestant, not Catholic). On one occasion, he described how his wife (apparently also as batshit insane and deluded as he was) had experienced a situation where she had been “in a pit and surrounded by demons trying to drag her to Hell”. He wasn’t describing it as a dream or even a vision – he described it as being literally real.

        There might not be many such “doctors” (I certainly hope not), but they exist. For non-anecdotal evidence, consider the number of credentialed medical professionals and social workers who support so-called “conversion therapy”.

  2. I don’t understand the argument that you have some gay right to force people to buy you a particular product.

    It’s so totalitarian and bizarre. If you want contraception, go buy it yourself, it costs like $5 a month.

    1. The argument is that : “I should be able to cram my progressive tolerance down your throat” –

      Those preaching tolerance, inclusion & diversity use it to compensate for their lack of tolerance.

    2. Sam:

      *Male* contraception costs $5 per month; female contraception can run into the hundreds of dollars, in part because contraception isn’t the only thing it’s used for.

      That aside, the real problem here is that employers have been given responsibility to provide health care coverage. Give us single payer and the issue goes away.

      1. The Pill is cheap and should be available over the counter, as many are trying to make it.

        “How it works: Birth control pills, also called oral contraceptives, use hormones to prevent pregnancy. They typically arrive in 28-pill packages, with seven placebos to use during your period. Doctors often recommend that patients take their pill at the same time each day.

        Cost: According to Planned Parenthood, the birth control pill costs $0 to $50 per month. The American Pregnancy Association notes that the initial physical exam with your physician may cost between $20 and $200. Annually, women may pay between $20 and $800, depending on medical coverage and pill costs.”

        https://money.usnews.com/money/personal-finance/family-finance/articles/the-cost-of-birth-control

        1. “I”The Pill is cheap and should be available over the counter, as many are trying to make it.”

          No, it should NOT.

          What the pill does is prevent the body from removing Beta Blockers — blood pressure meds which an increasing number of young women now take for anxiety. They are effective and far safer than the psych drugs.

          However, with Beta blocked her heartbeat won’t increase, but Alpha isn’t so her blood pressure can. Should her body call for more oxygen, it will release both alpha & beta.

          And if she also takes a stimulant, e.g. cocaine or adderal, her heart will explode. She will die aspirating blood. And that’s why these shouldn’t be OTC.

          1. Clarification — the B/C prevents her from excreting the beta blocker, so the level in her body continues to increase.

            1. By this sort of reasoning, grapefruit shouldn’t be OTC, either.

              1. Or, just as much, when she gets those other drugs, the doc could ask if she is on the pill.

                I think now, after so many decades of use, the pill is known risk. Just how many deaths are there, of those drugs being mixed with use with the pill, anyway?

            2. Dr. Ed manages to go too far for m_k and Brett…

              1. Sarcastro, I was very disappointed that Mr Ed, the Talking Horse’s Ass, only quoted an anti-gay Biblical passage. I was hoping he would also quote the parts about being able to sell your daughter to pay your debts, Moses’ instructions to the Israeli army that when they captured a city they could have the women for themselves, and, my personal favorite, the one about the importance of carrying shovels with you, so that when you defecate you can bury it. It’s important that you bury your excrement because sometimes the Lord walks through the camp after dark.

      2. Car payments, groceries and clothing can easily cost hundreds of dollars too.

        I don’t understand why that magically becomes someone elses burden. If you want the convenience of not wearing a condom, then you pay for that convenience.

        The burden of your personal private choice to have bareback sex should not be placed on other American families.

        1. That’s part of a larger issue, which is that the consequences of other people’s choices tend to spill over and affect society as a whole. As a general proposition I think people should clean up their own messes. But I also recognize the reality that a lot of people won’t clean up their messes, or will make messes that are simply too big for them to clean up.

          Most of the children in foster care are there because they have irresponsible parents. But they still need care that their parents can’t or won’t provide.

          1. Why do you gerrymander your reasoning around contraception?

            Why not include diet and exercise and other activities?

            Should we have the people in government control them as well?

            1. I think that’s what’s called “what-aboutism”. You’re basically just changing the subject. Just because a solution doesn’t solve every possible problem doesn’t mean it doesn’t leave us better off than we are now, and sometimes that’s the best we can hope for.

              That said, the short answer to your question is that diet and exercise don’t produce immediate, irreversible consequences the way an unwanted pregnancy does.

              1. Questioning your premise is not “what-aboutism”. It’s questioning the principle upon which you make your decisions.

                My follow up question, why do you conclude it must be the cost of contraception that is leading to these tremendous social burdens called “children”?

                Condoms are virtually free and available everywhere. Poor women already qualify for free family planning on state Medicaid plans, yet they have the most unwanted births.

                How is the solution to unwanted pregnancy giving middle class and rich women free birth control? They do not even have problems with unwanted pregnancies.

                The truth is you people have staked out a religious like belief in government contraception and you just keep working backwards from that ignoring any sort of empiricism on the way to your goal.

                1. Back up a minute. The position I have taken is that health care should be covered by government rather than employers. That’s a separate question from what, specifically, health care should cover (in this case, contraceptives).

                  And the real issue isn’t cost. The real issue is that there are drugs that are considered abortificants because they prevent pregnancy, but which women need for other medical reasons. A lot of women take the pill, not to prevent conception, but because it has other medical uses too. It is thus appropriate to cover it as part of health care, but that doesn’t alleviate the religious objections of those who see it as an abortificant. And my point, in its entirety, is that single payer would mean those women can get it as part of their health care plan without religious employers being dragged into it.

                  I agree with you that covering it probably doesn’t do much to reduce unwanted pregnancies, though it would probably reduce some of them. But that’s not the point. The point is that if a woman is taking it for reasons not related to contraception, there’s no reason it shouldn’t be covered like any other drug.

                  1. Why do you believe the government should cover trivial and routine healthcare expenses like contraception, but not other trivial and routine healthcare expenses like toothpaste?

                    And why only healthcare? Why not “lifecare” stuff like clothing, shelter and work?

                    1. The point is that it’s routine, but not trivial.

                    2. Contraception absolutely is inexpensive. Condoms are pennies, OTC birth control is dollars a month.

                      What sort of economic illiterate would even buy insurance for some routine expense that costs on the magnitude of dollars and cents that they know they would incur?

                    3. Scratch “OTC”.

                    4. What I believe is that if a health plan — government or private — covers prescription drugs, there’s no reason to exclude contraceptives. They’re prescription drugs like any other prescription drug.

        2. “The burden of your personal private choice to have bareback sex should not be placed on other American families.”

          Now do erectile dysfunction pills and the costs of delivering extra children for people who rely on others to pay for their large families (through insurance, taxes for education, and the like).

          1. Do you think the personal choice to have increased sexual pleasure is the same thing as a treatment for a medical condition?

            Maybe that’s why you people constantly ignore the burdens placed upon society by the selfish choice of so many homosexuals who refuse to wear a condom for the increased pleasure of high-risk sodomy.

            That costs us $30B a year, yet you people are silent on that issue.

      3. “Male contraception costs $5 per month”

        Umm…what?. A three-pack of condoms runs at least $6…god forbid you engage in intercourse more than 3 times a month.

        Meanwhile WalMart was offering a month of birth control pills for $9…no insurance needed.

        Meanwhile Democrats are vetoing simple, effective over-the-counter birth control for some reason.

      4. female contraception can run into the hundreds of dollars, in part because contraception isn’t the only thing it’s used for.

        The man behind the Hobby Lobby suit personally told me that he had no problem with it being used for the other things, nor with paying for it under those circumstances.

        It isn’t called “contraception” though….

    3. “I totally don’t have to obey the law, because I’m religious.”

      1. That’s the ‘heads we win, tails you lose’ or ‘sword and shield’ approach recently favored by some advocates of religion-based special privilege and indulged by Republicans. I expect the backlash against that overreach to be severe, for several reasons.

  3. This is why we need single payer health care. (There are lots of other reasons too.) That way, no employer ever has to pay for contraception if they don’t want to.

    1. If you want it, why don’t you pay for it? You know, just like everything else?

      1. Because, and this may come as a shock to you, some people are poor, and American healthcare is ridiculously expensive.

        1. How much are condoms?

          1. Not as expensive as child support.

        2. Government contributes almightily to that expense, and single payer will do so even more. Meanwhile, hiding the expense in a federal budget doesn’t reduce the expense.

          Everything scarce is rationed one way or another; that’s the first rule of economics. That politicians ignore that does not make it less so. Make it more expensive with single payer, and it will have to be rationed even more severely. You and every other statist do not seem to grasp such simple concepts, or that prices are not the same as costs.

          1. Whoa, please don’t assume from the fact that I took it upon myself to answer Sam Gompers’ question that I favour a single-payer system.

            I favour getting employers out of health insurance, and I favour the individual mandate, but I don’t necessarily favour single payer.

            On the other hand, I do understand the concept of buyer power. If the system isn’t set up to allow and/or incentivise insurance companies to exercise buyer power (for example because they just pass on the costs to their customers, or because we think it is unethical to punish patients harshly for going out of network), single payer may well be the least-bad solution.

            If you’re going to decide whether or not single payer is “more expensive”, the idea is to compare it to alternatives that actually give you the outcomes you demand from the system. Since the current health care system falls well short of what a civilised country should expect, it isn’t an appropriate benchmark.

        3. So you see health insurance as a form of income redistribution (or, if you prefer, cost redistribution) rather than a form of, you know, insurance.

          1. Yes. Health insurance is something that everyone should have but not everyone can afford, so one way or another some kind of redistribution is in order. But I’m perfectly fine with doing the redistribution the other way around: require everyone to buy insurance and subsidise it to make sure it’s affordable for all. Thrown in some vouchers for all I care. But one way or another it is going to involve redistribution.

      2. My issue is why should I have to pay for blood pressure pills, which are essential to my life, but not contraception (which is optional).

        1. Lose weight. Cut down on salt. Exercise more. Improve your diet. Get a less stressful job.

          Maybe then you won’t need those blood pressure pills. Or maybe you will, I don’t know. But the point is that lots of medical expenses are “optional,” in the sense of being due to our choices.

          1. “But the point is that lots of medical expenses are “optional,” in the sense of being due to our choices.” Don’t fuck. You don’t NEED to fuck. Problem solved.

    2. “This is why we need single payer health care.”

      Then you just hope the single payer pays for contraception.

    3. “That way, no employer ever has to pay for contraception if they don’t want to.”

      That way, everyone is forced to pay not only for contraception but also for abortion. What’s not to like?

      1. Statists think prices and costs are the same.

      2. Are you suggesting that everyone isn’t paying for the lack of access to contraception now? Or indeed the lack of affordable healthcare access in general?

        1. There’s no lack of access to contraception now. It’s freakin’ free for most everybody, and only nearly freakin’ free for the rest.

          1. Why do I suspect you have no foundation for that statement?

        2. Are you suggesting that everyone isn’t paying for the lack of access to contraception now? Or indeed the lack of affordable healthcare access in general?

          Would you be kind enough to explain what you mean by “access“?

  4. “In short, the Contraception Mandate litigation, like so many other disputes over law and religion, reflects the deep polarization in our society. As long as that polarization continues, cases like Hobby Lobby, Zubik, and Little Sisters will continue to arise—as well as cases like Masterpiece Cakeshop, Fulton v. City of Philadelphia, and many others.”

    GOOD! Our society is stronger when opposing individuals and groups can battle it out in the court room and at the ballot box.

    We already know the direction we as a nation are heading anyway (with the odd setbacks and bumps-in-the-road).

    1. “Our society is stronger when opposing individuals and groups can battle it out in the court room and at the ballot box.”

      What evidence do you have for that? It’s like your taking the competition aspect of the free marketplace, and applying it to society….I don’t think it translates.

      1. Of course you wouldn’t think so! You are in favor of the all-powerful State and one-thought-for-all.

        1. That, my friend, is a false dichotomy you just set up.

          Famous movie false choice: https://www.youtube.com/watch?v=pez_79eWSWw

          1. Pardon me for assuming that someone who despises social competition is in favor of one-thought-for-all.

            1. Social competition is not the same as market competition. That’s some social Darwinist thinking right there to presume it is. Are you a social Darwinist?

              Further, where do you get the idea that I’m “one-thought-for-all” and that I “despise” social competition.

              That’s 2 more logical fallacies you make right there, strawmanning my opinion that too much political polarization means I “despise” social competition, and another false choice, that limiting polarization would mean “one thought for all”.

              1. Competition is competition. You’re the one trying to make distinctions to justify ignoring one.

                Lack of competition is what you seem to want, otherwise known as monopoly, and I wonder who would be the arbiter ….

                1. Competition is not competition, if that was the case, then everywhere in the world would look like some version of apartheid South Africa or the West would engage in neo-colonialism…you know, like the Chinese.

                  You’re imputing into my words what you think I am advocating for in order to argue what you want to argue against. Try “steel-manning” my desire for less political polarization and let’s see where it takes us.

  5. How did a political faction that purports to support reproductive freedom end up supporting a “contraception mandate?”

    I guess all good totalitarians know that of purchasing contraception coverage isn’t forbidden, it must be mandatory.

    1. Except that, as you well know, the contraception mandate doesn’t actually make it mandatory for anyone to buy contraception.

      1. If no one is buying contraception, how are all these women getting it “for free”?

        1. Reading comprehension…

          I didn’t say that no one was buying contraception, I said that buying contraception wasn’t actually *mandatory*.

          1. Someone literally has to be buying the contraception. Do you think it grows on contraception trees or something and there are some PA’s out there harvesting it on the daily?

            1. (picturing contraception trees, laughs out loud)

              Good think I am at home.

            2. Sam, here are statements that are not equivalent to “buying contraception isn’t mandatory”:
              Nobody buys contraception
              Nobody manufactures contraceptives

              I hope this helps.

  6. I know this has been brought up in the past, but if the insurance provider gives contraception “free” to the employees as “not part of the employer’s plan” it not really free in that the employer and employee’s portion of their costs are still subsidizing it. It’s a distinction without a difference.

    1. Except that providing free contraception might save the insurer, and by extension the employer, in costs for abortions, OBGYNs, pediatricians, etc.

      1. Firstly, nothing is free. It’s subsidized by the employer and employee’s share of the insurance plan.

        Secondly, I’m not sure we should be making a “cost savings” utilitarian argument when it comes to abortion and/or a woman deciding to bring a baby to full term. By comparison, you shouldn’t decide to not hire a young woman because they are the ones who will take FMLA on you; you cannot even legally ask her at the job interview “are you going to get pregnant.”

        1. Firstly, there is no net cost (or even perhaps a cost savings) if Martinned is correct.

          Secondly, I agree this issue isn’t about cost. Why then did you brng up cost?

          1. Because people throw around the word “free” wrongly?

            Like I said, even if the employer’s plan doesn’t include contraception but the provider still gives it at their cost, in reality, the employer is still paying for it. And who pays for what matters, it’s why there are polite fictions like the Hyde Amendment.

            Third, politics is defined as “who gets what”. The “what” costs money.

            And I was just cautioning Martinned about the very slippery slope of justifying insurance decisions based on the costs of employee behavior. It isn’t far down that slope before smoker’s pay more, and that lard ass in Account Receivable should pay more too, and those with a family on the plan are passed over for employment, as are the elderly. Do we really want to make the argument that if we provide abortion or contraception, then we *save* money in the long run?

            1. I think you are arguing that the religious objection is subsidizing specifically contraception coverage even if there was an equal savings in pediatric coverage.

              As I recall, employers were willing to allow employees to opt into a separate insurance policy that covered contraception at no (apparent) cost to anyone. Instead what employers objected to were automatic payments made to employees for contraception that employees could opt out of even though the payments were not part of the group health plan. Apparently, the employers felt the latter involved moral culpability while the former did not.

              Wouldn’t either arrangement involve the employee subsidizing contraception coverage?

              1. No, I’m not arguing that at all. Why do you keep talking about some sort of cost comparisons/savings? That’s a distraction (look, squirrel) .

                I’m saying that contraception is being paid for by the employer, regardless of if it is offered as part of the group plan or not, because Blue Cross charges employer/employees more to cover the costs of providing it “outside” the group plan. It’s like saying “shipping and handling is free” when the cost to ship/handle your Slap Chop is built into the cost of the 3 easy payments of $19.95.

                It’s a distinction without a difference, never mind requirement for filling out the paperwork involved and notifying the employee that they can get abortion/contraception over there is like saying “hey, I might not think smoking peyote is morally acceptable or particularly religious, and I won’t do it myself, but here’s a dispensary that give it to you, don’t worry about out of pocket costs because we all pay for it for you, collectively.”

                As for cost savings for providing contraception/abortion due to less pediatric expenses, , I don’t think society wants to go down that utilitarian road, where personal lifestyle choices make a difference in HR decisions related to insurance.

                1. I’m saying that contraception is being paid for by the employer, regardless of if it is offered as part of the group plan or not

                  So what?

                  1. Not sure you if you’re being obtuse on purpose or doing a sh*tty version of the Socratic method.

                    Let my try an analogy. Would you pay more rent or property taxes to other people didn’t have to, just so that they could use the money to engage in an activity that you feel is immoral?

                    1. I think the “so what” of your analogy is what I said earlier

                      I think you are arguing that the religious objection is subsidizing specifically contraception.

                      Do Do I have that right? If not, then what is your point?

                    2. I’ve already explained, in exacting detail, the distinction without a difference that the accommodation is, and by consequence, how it’s not accommodation at all, let along the fiscal fiction it is.

                      If you can’t some up with anything other than rhetorical sour grapes, it kinda concedes the argument. Note, I am humble enough to know that you won’t see it that way, but still, there it is.

                    3. You missed my point that the employers themselves do not agree with you as evidenced by their contention that allowing employees to opt into a separate insurance policy that covered contraception did not burden their religious beliefs or practices.

      2. “Except that providing free contraception might save the insurer, and by extension the employer, in costs for abortions, OBGYNs, pediatricians, etc.”

        It may or may not. If it does, great! Why mandate it?

        1. Because the cost savings may not fall on the same persons/companies/etc. as the costs. For example, at least part of the cost savings in my scenario would fall on the insured person who no longer has to pay various co-pays, etc. But since they don’t get a say in the insurance package their employer buys, the employer doesn’t have optimal incentives.

  7. True, unlike the Bleak House original, the Contraception Mandate litigation isn’t making anybody rich.

    I liked the optimism of this line. I, for one, can definitely think of a group of people who are getting rich off this litigation. And, if I were to speculate, that may well be the exact same group as the people who are encouraging the Little Sisters of the Poor to persist.

    1. Why speak in sotto voce? I’m genuinely curious what group on the right you think is pushing them to persist. I agree with the OP, that for both sides it’s a matter of principal.

      1. Principal Belding?

        As for your actual question, you’re forgetting the lawyers. The lawyers always get paid.

        1. “The lawyers always get paid.”

          That, my friend, is correct. I was taking the OP at his point that these lawyers weren’t getting rich on this, like they did going after, say, Big Tobacco.

          1. Better the lawyers get the money than Big Tobacco.

            1. My theory of this litigation is that the religious objections were never sincere. I know it’s not polite to say this, but I literally think all the plaintiffs are lying. I don’t think the Little Sisters believe that God will be mad at them for signing a form, I don’t think Hobby Lobby’s principals believe that God will condemn them for paying for health insurance that contains contraceptives. Conservative Christians have signed forms and paid indirectly for workers’ contraceptives for decades.

              And that means the lawyers, who are making the money, are very important to this story. You see, there’s a lot of money out there for anyone who will take down Obamacare. And there’s less, but still plenty, of money out there for anyone who will advance religious exceptions into the law that homophobic conservative Christians can use to screw over gays and lesbians.

              And that’s what generated this litigation.

              I still say the law ought to be that Smith is the general rule, and if you want an exemption from a rule that everyone else has to follow, if you think you are that special, you should need to establish with clear and convincing evidence that it violates a core belief. That means if there’s any evidence out there that you actually don’t practice what you preach, that you, for instance, paid for your employees’ health insurance until recently or submitted a form that indirectly resulted in someone’s contraception getting paid for, you lose. Presuming the sincerity of RFRA plaintiffs is one of the biggest errors courts can make.

              1. And in that regard, as you might imagine, I think this:

                “For opponents, it’s about affirming their deepest faith commitments, notwithstanding pressure from the state and progressive opinion that seeks to crush them.”

                is dead wrong.

                I think the number of Catholics whose deepest faith commitments include not indirectly triggering a government process that eventually results in an employee getting free contraception from another source is zero, and I think the number of evangelical Christians, who don’t even teach that contraception is immoral, who think that indirectly paying for employee contraception through tax revenue is a rounding error.

                “Deepest faith commitments” are stuff like Jesus being the Son of God, God answering your prayers, interceding in human affairs, and sending you to heaven, the consecration of your marriage and baptism, etc. This is all “shallow human stuff they conveniently and suddenly decided to care about because of the politics of Obamacare”.

  8. “For proponents of the Mandate, it’s about women’s health and equality, and about beating back the obscurantist forces that threaten both.”

    For the people who mandated it, it was about paying off Big Pharma with a huge client base with no price signals and a third party payer whose forced to pick up the tab.

    What a sweet deal for Big Pharma.

    1. Obama didn’t make the same mistake Bill Clinton did with Hillarycare, he flanked the GOP with the individual mandate and got Big Pharma and the rest of the medical lobby on his side by promising them the payoff of an endless stream of customer_citizens with no choice. That’s the biggest reason Obamacare passed while Hillarycare didn’t.

      1. Um. Wasn’t it George Bush who decided Medicare couldn’t negotiate drug prices with big pharma? That’s a heck of a lot bigger payoff than whatever incremental profits they make from the contraception mandate.

        1. “Wasn’t it George Bush who decided Medicare couldn’t negotiate drug prices with big pharma? ”

          Maybe with a little help from congress?

    2. Yes, the notorious Big Condom lobby…

      1. If you don’t think there’s a massive market for contraceptive drugs, you’re completely ignorant.

        1. I sure see enough ads for them on TV.

        2. Sure there is. But the question is how much bigger the mandate made it than it would have been otherwise.

          Besides, how profitable can it be? Everyone keeps saying how cheap contraception is.

  9. I’m not a fan of the contraception mandate, or most of the ACA for that matter. But these RFRA exemptions are just as bad, if not worse.

    I don’t see how the RFRA, at least as it’s often applied, can be considered constitutional. The government is favoring particular religious beliefs. If you hold certain religious beliefs, you don’t have to comply with certain legal requirements or obey certain laws. If you don’t hold those religious beliefs, you do have to comply with those legal requirements or obey those laws. How is that not a violation of either the First or the Fourteenth Amendment?

    If I, as an employer, don’t want to provide coverage for contraception because of a religious belief that I hold, I don’t have to? But if I, as an employer, don’t want to provide coverage for some other reason – e.g., to save money or because I’m secularly opposed to other people having sex – then I still have to provide coverage.

    I think an acknowledgment that we shouldn’t require people who are religiously opposed to a given rule to comply with it is an acknowledgement that we shouldn’t have that rule to begin with.

    1. Didn’t you hear? RFRAs don’t just protect religious beliefs, but also cases where “the claimed belief occup[ies] the same place in the life of the [believer] as an orthodox belief in God holds in the life of one” clearly asserting religion. All solved!

      1. As for the point above, while not an expert on the RFRA, I believe (pun intended) the way it was able to get near unanimous support during the kinder/gentler politics of the Clinton years, was that it gave protections to Indian Peyote smokers and Dem constituents as much as Christians and GOP constituents.

        1. It got near unanimous support because no one in America ever wins an election by standing up for the rights of atheists.

          1. Perhaps, your heartache aside, this is because there are so few atheists, let alone of consequence, and this is a democratic republic?

            What rights of atheists are violated, btw, by the RFRA? Like I said, I’m no expert on it.

            1. Ted Kennedy was the big proponent. I’ll let you work out what religion he was tracking.

    2. At least facially, a unanimous Supreme Court held RLUIPA act (a close cousin to RFRA) does not violate the Establishment clause. Whether and under what circumstances an “unjustified burden” would lead to a successful as-applied challenge remains a mystery.

    3. Tilted: “If I, as an employer, don’t want to provide coverage for contraception because of a religious belief that I hold, I don’t have to? But if I, as an employer, don’t want to provide coverage for some other reason – e.g., to save money or because I’m secularly opposed to other people having sex – then I still have to provide coverage.”

      Religious belief is singled out for protection by the First Amendment. For better or worse.

      1. I agree. I’m a Christian Scientist. The plan I offer my employees excludes emergency room visits. I’m glad the law is on my side now.

  10. “moral-readings approach like Vermeule’s”

    All substantive laws are based on morals and judgments about morals. No exceptions.

    1. Oops, wrong thread,

      1. I mean, not off-topic for this thread eather.

    2. I thought that thread was dead. Hmm. I will return to it.

  11. One of many issues where conservatives were perfectly ok with something until Obama did it. He was black, and therefore not a legitimate President.

    Previously, churches and related institutions had no objection to coverage for contraceptives. We know this because they actually provided it.

    1. Do you know that Protestant churches have no prohibition against contraception, but Catholics do? This suit involves Catholic nuns.

      It might surprise you to learn, that there are wide doctrinal differences in the denominations.

      Please, drop the Obama not legit stuff, because Hillary was the biggest birther of them all. And seriously, both parties support (or not) policy X or Y because their guys propose it, but then just a few years later the other guys propose policy X or Y and suddenly it’s the end of the Republic if it becomes law.

      1. Hillary was the biggest birther of them all

        Oh bullshit. Why do you beclown yourself with this Fox nonsense?

        Did Clinton send investigators to Hawaii? (Of course Trump didn’t either, but he did want people to think he did.)

        Did she rage about Obama’s birth for years? Or ever, for that matter?

        Birtherism was a creature of the right-wing fever swamp, which Trump avidly promoted. It was standard dishonest crap from Limbaugh, Fox, and the rest of those scumbags.

      2. It’s easy to look up. Catholic universities such as DePaul and Notre Dame offered contraceptive coverage before 2009. No doubt others did too.

        Even actual Dioceses offered it, such as the Archdiocese of New York. You can look this up too but I can help you by giving you this link from 2002.

        https://www.nytimes.com/2002/04/04/nyregion/assembly-concession-may-move-stalled-women-s-health-bill.html?pagewanted=2&src=pm

        1. Sorry, wrong link.

          Here it is. In 2013 the Archdiocese admitted that it had been paying for contraception (and abortion!) coverage for over a decade.

          https://www.irishcentral.com/news/cardinal-dolan-admits-his-archdiocese-pays-up-for-contraception-and-abortion-insurance-209144371-237592521

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