Edward A. Morse (Creighton U. School of Law) has posted Lifting the Fog: Navigating the Penalties in the Affordable Care Act. The abstract follows.
This article provides an analysis and critique of tax penalties affecting employers and individuals in the Affordable Care Act. After an overview of the Act and its intended role in addressing problems in the health insurance system, the article turns to examine the employer and individual mandates, along with the requirement of minimum essential coverage. It argues that behavioral effects of these provisions are unlikely to achieve the desired policy outcomes. Moreover, the failure to accommodate conscience exemptions for employers and citizens with objections to contraceptive coverage likewise erects a barrier to achieving the desired policy goal of expanded coverage. Finally, the article briefly touches on the problems associated with state exchanges and their implications for employers and citizens seeking health insurance coverage. An appendix shows hypothetical computations affecting an employer decision to shift employees to exchanges rather than to continue employer-provided coverage.
And from the Introduction: Continue reading
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.”
Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate. The abstract follows.
The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One’s religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs of anti-contraception beliefs that they do not share.
Another victory (though perhaps only temporary) for plaintiffs challenging the Affordable Care Act’s contraception mandate under RFRA. A federal district court in Michigan has granted a preliminary injunction barring enforcement of the mandate against a for-profit corporation whose owners object to complying with the mandate because of their Catholic beliefs. According to Judge Robert Cleland, neither the corporation nor the government had made a strong showing of success on the merits: the mandate might be the least restrictive means of achieving a compelling state interest, but the question was close. Given the religious freedom concerns here, however, the balance tipped in favor of granting the preliminary injunction, in order to avoid irreparable harm to plaintiffs while the case continued. The court dismissed a challenge to the mandate brought by a non-profit Catholic organization on the ground that the organization fit within a temporary regulatory safe-harbor and had not yet suffered a cognizable injury. The case is Legatus v. Sebelius, 2012 WL 5359630 (E.D. Michigan, Oct. 31, 2012).
Robin F. Wilson (Washington and Lee U. School of Law) has posted The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and other Clashes Between Religion and the State. The abstract follows.
This Article considers a burning issue in society today—
whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political
maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion
and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate same-sex marriages. In all these contexts, religious objectors claim a special
right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and
may impose significant costs on others. Legislators and other policymakers have struggled with how to advance two compelling, and at
times conflicting, values—access and religious liberty. This Article examines, and responds to, a number of “sticking points” voiced by legislators
about a qualified exemption for religious objectors to the duty to facilitate same-sex marriages—concerns that bear an uncanny resemblance
to reasons why some believe the Obama administration should not yield
further on the contraception mandate. This Article maintains that religious accommodations qualified by hardship transform what could be a zero- sum proposition into one in which access and religious freedom can both be affirmed.
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.
Jessica L. Waters (American University School of Public Affairs) has posted Testing Hosanna-Tabor: The Implications for Pregnancy Discrimination Claims and Employees’ Reproductive Rights. The abstract follows.
In April 2009 Jaretta Hamilton, a married elementary school teacher, was fired after her employer school learned that Hamilton became pregnant prior to her wedding. In October 2010 Christa Dias, an unmarried technology coordinator for two schools, was fired after her employer learned Dias was pregnant via artificial insemination. In 2011, Emily Herx, a married Language Arts teacher who was struggling with infertility, was fired after the school where she had been teaching for seven years learned that Herx was undergoing in vitro fertilization treatments. In the fall of 2011, Cathy Samford, an engaged middle school science teacher and volleyball coach, was fired after her employer discovered Samford’s pregnancy.
Can the employer schools of these four women legally fire them for attempting to become pregnant or actually becoming pregnant? Because the schools in question are religiously-affiliated schools, in the wake of Hosanna-Tabor Evangelical Lutheran Church v. EEOC the answer may be yes.