What’s Wrong with the World




Extremely bad recent HHS ruling

Ed Whelan at NRO takes down a recent really bad ruling against an employer who sued over the HHS mandate. I assume the ruling is being appealed. ?? Hopefully we'll get more justice at the next level.

I don't have time to make a lot of comments, but here are some salient points from Whelan's column:

The judge, Carol E. Jackson, says that refusing to pay for a healthcare plan that covers contraception can be an exercise of freedom of religion under the all-important (to this case) RFRA, but her actual ruling contradicts that. Essentially, her ruling says that because what employers are being told to do is to pay for a plan that only might end up paying for the services in question, depending on the independent decisions of other people, making them do this can't substantially burden their freedom of religion. But that could only be true if refusing to pay for such a plan is not really an exercise of freedom of religion.

If that's accepted by the legal establishment, then all exemptions, including the very narrow ones already allowed for a small number of religious institutions, could be removed, and abortion or any other "procedure" could be added to the required benefits, and that would also not be a substantial burdening of anybody's freedom of religion. Whelan points this out.

Useful article.

Comments (13)

I heard that they filed an appeal immediately.

Thanks! I was just getting up the post and didn't look it up.


What?!? Apparently this "judge" has never heard of material cooperation. And it is not "indirect" financial support - it is direct financial support because you are paying for coverage of contraceptives, not simply giving money to someone who can then use the money to buy a sandwich or contraceptives. In other words, the financial contribution is a "contraceptive coupon" - it can't be used for anything else. So it is DIRECT, not INDIRECT, financial contribution, just as though you were buying the contraceptives directly.

What if, by some wierd rule, Prostitution Services were required to be covered as part of "mental health counseling," and the services are hypothetically not illegal. The coverage you are paying for is only good for the services - you can't use the money spent on coverage for a gym membership because it is not money that is provided to you to then use at your discretion, but it is coverage of a specific activity. How is forcing someone who objects to Prostitution on religious grounds to provide that covergage NOT a substantial burden on religious exercie? You are forced to fund that which goes against your religion. Utter madness.

How come when it comes to Church/State separation, any ridiculously minimal alleged involvement of Church in State affairs (e.g., spontaneous prayer by student at a public school) is met with immediate and draconian sanctions, but significant restriction by the state of religious practice gets not even a wrist slap?

Wasn't there another case in another circuit where the mandate was struck down? If each is upheld by its respective circuit courts of appeal, it gives clear conflict jurisdiction to the SCOTUS and makse it more likely to accept the case. Whether that is good or bad, who knows.

C Matt, my recollection is that it's still going to trial in the other jurisdiction but that the judge refused to dismiss and put a restraining order on the mandate's being applied to the specific plaintiffs in the meanwhile. If I've got that correct, it only means that the judge thinks the case isn't entirely without merit and also that the judge thinks that to fine the business in the meanwhile would be potentially a "harm" and should be stopped in case the case ultimately goes the plaintiffs' way.

I understand that the religious opt outs are very important - with good reason. But what if an individual believed contraception or abortion were wrong for non-religious reasons? If that were the case, should the government force someone to do something they believe to be incorrect?

Take the conscience clause where nurses, doctors, and pharmacists wouldn't have to provide certain services based on religious reasons. Why couldn't someone refuse service based on any (good/reasonable) reason? Perhaps I need to think on the matter more.

Regardless, I just received an email about this for donations from CatholicVote.org to help with the legal costs.

Joey, I think one issue with religious reasons being different before the law is that people have a higher obligation to follow their religion than the laws of the state, and that they will therefore willingly violate the laws if the laws don't protect with conscience clause opt-outs for religious reasons.

Joey, I think you have an interesting point and that there certainly should be a more general conscience clause. I think this is just a case where we "take what we can get." The RFRA (Religious Freedom Restoration Act) was specifically directed at protecting religious freedom, and it's obviously really well-suited for these law suits, so that's the law under which the suits are being brought. It's not that someone is saying, "A conscience formed for some non-religious reason is of no importance" but simply that we'll take all the exceptions to a bad and coercive law that we can get. There are *so many* things wrong with the HHS mandate (it's economically stupid, just to name one that doesn't get mentioned very often) that it's hard to know where to start, but if we can whittle away at it, as well as making it very unpopular, we can also hope that it will be generally rescinded under a different administration in the future.

One reason for the difference is that religious exercise is expressly stated in the Constitutional amendments. "Good reason" is not, but I wonder if "religious exercise" could extend to a moral or ethical reason. Otherwise, it would seem atheists could never object to an action, no matter how reasonable their objection to it on moral/ethical grounds.

If a person has a religious objection to war, such as a Quaker, they can then escape serving in the military. However, they can't also escape paying taxes to support the military. Similarly, Amish are not required to drive cars, but they can't itemize their tax bill to avoid paying for roads, except to the extent that they can avoid specific taxes (e.g. not buying gas). If healthcare is a genuine public good like the military or roads, then there shouldn't be religious exceptions to funding the provision of the system, even while there are religious exceptions to the level of participation in it.

Most conservatives believe that healthcare is not a genuine public good, but I'm not at all sure that this is a majority position. Certainly both major parties take it as an article of faith that the government has some significant role in the provision of healthcare. Abortion could plausibly be added, as it is a perfectly legal procedure that usually falls under the rubric of healthcare (Elective abortion, and birth control for that matter, is not something I would consider a legitimate matter of healthcare, but alas I am outnumbered). What has kept the abortion exceptions alive is the government purposely being inconsistent in the face of anti-abortion opposition.

Maybe birth control opponents could stake out a similar unprincipled exception, but it depends on whether there is nearly the level of hatred for BC as there is for abortion...something I wouldn't bet on.

Matt, in case you haven't noticed, this is not a matter of paying taxes into a gigantic slush fund from which the government purchases X. Rather, employees, *in virtue of* their employment with a particular employer, are to be given *as a benefit from that employer* a membership in a health care plan which directly covers these "services." That makes a difference to the employer's involvement in the provision of the services, making the connection between the employer's act of employing that person and the provision of these products and services quite tight. It would be like requiring a Quaker to buy every employee a membership in a rifle club or a coupon book that was mandated to include coupons for guns and ammo, not like requiring a Quaker to pay taxes which the government uses for, inter alia, the purchase of guns.

Sorry if you can't see that.


Matt, the Supreme Court made it clear: if the government wanted to pay for medical care out of general tax revenue, it had the power to do so. Then it would fall under the general taxing authority and neither Catholics, Quakers, or other Christians could refuse to "fund" the health care by not paying taxes.

Of course, Obama and his political advisers knew they could not get support for a new "tax & spend" program for health care as a government program. The votes, and public support, just weren't there. So they went through a different road. They cannot then claim that such different road is "just like" the government collecting the money and paying for health care itself.

Well that's true enough. We don't have single payer yet, at least not outside of medicare/caid.

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