For any readers who are local and free on Sunday morning: I will be giving an informal talk at Grace Church in the Village. Here is the church’s description:
“Do religious organizations have special constitutional protection from government regulation? Professor Tebbe will explain and lead discussion on recent Supreme Court rulings on employment discrimination and challenges to the Affordable Care Act.”
The Becket Fund will host a conference, “Islamic Law, Same-Sex Marriage, and the Affordable Care Act” in Washington, DC, on Thursday, September 13. For details, click here.
You read the date right. In response to the new HHS regs requiring all employers, including most religiously-affiliated employers, to cover contraceptives in employee health plans, Senator Marco Rubio (R-FL) yesterday introduced a bill, “the Religious Freedom Restoration Act of 2012,” that would make the regs inoperative. The bill creates what it calls “conscience protections” that would exempt employers who oppose contraception “on the basis of religious belief.” Others have introduced similar legislation. The text of Senator Rubio’s bill is here.
Ross Douthat has an interesting piece in the Times today about the Obama Administration’s decision to require religiously-affiliated universities and hospitals to cover sterilization and contraceptive drugs, including drugs considered to be abortifacients, in employees’ health care plans. An exemption applies to religious institutions that primarily serve members of their own faith, rather than the public at large – parish churches, for example. Douthat takes the traditional libertarian line: even if one disagrees with religious objections to contraception, such that one would oppose government’s attempt to discourage their use, one might wish to allow private voluntary associations, like churches, to conduct themselves according to values that government does not share. Otherwise, by eliminating the state’s competition, one risks creating a despotic government that ultimately will trample on the liberties of the people. Douthat also points out the perverse incentives the proposed regs create. If a religiously-affiliated institution believes that conscience requires that it not cover sterilization and contraceptive drugs, including drugs considered to be abortifacients, for its employees, the institution must limit its charitable work to co-religionists. Not exactly encouraging Good Samaritans.
Here’s a bit of surprise: the Washington Post has come out against the Obama Administration’s decision to require religiously-affiliated employers to cover contraceptives, including abortifacient drugs, in their health-insurance plans:
The best approach would have been for HHS to stick to its original conclusion that contraception coverage should generally be required but to expand the scope of its proposed exemption for religiously affiliated employers who claim covering contraception would violate their religious views. The administration’s feint at a compromise — giving such employers another year to figure out how to comply with the requirement — is unproductive can-kicking that fails to address the fundamental problem of requiring religiously affiliated entities to spend their own money in a way that contradicts the tenets of their faith. . . .
[T]he significance of the new health-care law is that the federal government will for the first time require all employers to provide insurance coverage for their workers — in other words, to spend their own money to help underwrite this coverage — or, in many cases, to pay a penalty. In this circumstance, requiring a religiously affiliated employer to spend its own money in a way that violates its religious principles does not make an adequate accommodation for those deeply held views. Having recognized the principle of a religious exemption, the administration should have expanded it.
This month, Oxford University Press publishes Prevention vs. Treatment: What’s the Right Balance? (Halley S. Faust & Paul T. Menzel eds.). The volume collects essays by, among others, lawyers and religious ethicists on the proper balance between preventative and curative care in government health spending. The collection is of particular relevance in this time of increased government healthcare regulation and the possibility of real nationalized healthcare in the United States. It offers both legal and spiritual-ethical guidance as to how government should structure its healthcare-spending priorities. See OUP‘s description below:
Everyone knows the old adage, “an ounce of prevention is worth a pound of cure,” but we seem not to live by it. In the Western world’s health care it is commonly observed that prevention is underfunded while treatment attracts greater overall priority. This book explores this observation by examining the actual spending on prevention, the history of health policies and structural features that affect prevention’s apparent relative lack of emphasis, the values that may justify priority for treatment or for prevention, and the religious and cultural traditions that have shaped the moral relationship between these two types of care.Economists, scholars of public health and preventive medicine, philosophers, lawyers, and religious ethicists contribute specific sophisticated discussions.
Lynn D. Wardle (BYU – J. Reuben Clark Law School) has posted Protection of Healthcare Providers’ Rights of Conscience in American Law: Present, Past, and Future. The abstract follows. – ARH
This article reviews the past, present, and future state of healthcare providers’ right of conscience. It reviews the deeply embedded constitutional protections that recognize the right of conscience as a fundamental human right, and additionally, it shows that the constitutional doctrine of abortion privacy assumes and allows protection for the rights of conscience of healthcare providers. After reviewing the past, the present state of protection of right of conscience is set forth, including the Provider Conscience Rule adopted by the Department of Health and Human Services in 2008. The future of the 2008 Provider Conscience Rule is considered, since there has been debate over rescinding it, and the article concludes that while it is possible to fully protect rights of conscience, full commitment is needed to honor this important, fundamental right.