We have already discussed in a preliminary fashion the impact of the regulations proposed Friday on religiously motivated businesses, as well as whether the way in which the cost of contraception is shifted from religious organizations to other parties ought to relieve the consciences of those troubled by the mandate.
I published an op-ed on Friday in which I elaborated for an audience in my home state on an issue that I raised in this blog before. Georgia law mandates contraceptive coverage, exempting only organizations (like the Roman Catholic Church) that self-insure. The question that was unclear when I wrote the op-ed, but painfully clear now, was whether the Obama Administration’s ungenerous proposed regulations would supersede the even less generous state law.
Yesterday we received our answer:
Finally, the provisions of these proposed rules would not prevent states from enacting stronger consumer protections than these minimum standards. Federal health insurance regulation generally establishes a federal floor to ensure that individuals in every state have certain basic protections. State health insurance laws requiring coverage for contraceptive services that provide more access to contraceptive coverage than the federal standards would therefore continue under the proposed rules.
Churches and religious organizations in Georgia and seven other states would not receive even the minimal accommodations proposed by the Obama Administration, which is quite willing to compel states to toe its line on health insurance coverage, but not on religious liberty. If we hadn’t see it before, we see now where the Administration’s heart really lies.
February 4th, 2013 | 10:02 am
The Obama administration is playing the same game sleazy car dealers do, when they pretend they’re giving customers, say, “free” oil changes for the next 5 years. Is there anyone over the age of 12 who doesn’t grasp that the dealer has already calculated the price of oil changes and figured it into the price he charges for his cars?
In the same way, Obama pretends that he’s compromising by insisting that the CHurch won’t be required to pay for contraceptives, that the insurance companies will pay for those services separately.
Sigh… does anyone over 12 doubt that the insurance companies are going to figure out the cost of birth control and add that to the premiums churches pay, one way or another? Insurance companies are not in the practice of giving out freebies. This is no “compromise,” and Obama knows it. He merely hopes (not without good reason) that bishops will eagerly accept any fig leaf offered.
February 4th, 2013 | 10:32 am
When federal laws and state laws conflict, federal laws override state laws. But in this case they do not conflict.
The state mandates have been tested in the courts and passed constitutional muster. The California and New York Supreme Courts upheld those states’ contraceptive mandates, which are more strict than the newly proposed federal mandate. The U.S. Supreme Court upheld the California and New York decisions by refusing to hear appeals.
So the California Supreme Court, the New York Supreme Court, and the U.S. Supreme Court have said state contraceptive mandates are not a violation of religious liberty. All these decisions were made before Obama became president. When the courts have decided that the state mandates do not violate religious liberty, it is odd and unfair to blame Obama for not attempting to override them in the name of religious liberty.
February 4th, 2013 | 10:57 am
Uh … where? In federalism?
Obamacare is federal law. In general, federal law preempts state law where they conflict, but not otherwise. The Obama administration interprets the law to require some amount of contraceptive coverage. This would preempt any state law that required a lower level of coverage; it would not preempt any state law that required a higher level.
Would the author like to apply his reasoning to the field of abortion? There is federal abortion law. On that basis, should we embrace the idea that states are precluded from adopting any abortion-related laws that differ from federal law? Or should we embrace the idea that states retain authority to regulate abortion within the limits of federal law?
(Caveat: Admittedly, US court will sometimes preempt a state law without finding a specific conflict with federal law if the federal regulatory scheme is deemed so pervasive as to “occupy the field” of regulation. Schemes establishing competitive markets – say, in transmission spectrum rights — may fit this category. The feds may not want states tampering in a multi-state regulatory scheme to give advantages to their own businesses at the expense of other firms in the market; that would defeat the purpose of creating the market. But this kind of preemption is the exception rather than the rule. Generally, courts are supposed to grant states the greatest leeway possible, consistent with the federal purposes.)
February 4th, 2013 | 11:23 am
David, when the U.S. Supreme Court refuses to hear an appeal it is not the same as endorsing the opinion. The Supremes have yet to rule on the conflict between religious liberty and mandatory contraceptive coverage.
February 4th, 2013 | 11:33 am
Both the New York and California mandates have some exemptions for religious groups, which isn’t true of Georgia’s mandate, as affected by the Affordable Care Act, nor of at least seven other states.
I don’t regard the previous litigation history as dispositive for two reasons. First, the state mandates might have required contraceptive coverage if you provide health insurance or if you provide prescription coverage. There’s a big difference between that sort of mandate and one that is much more sweeping. Second, while state mandates might be tried under the post-EMPLOYMENT DIVISION V. SMITH reading of the the Free Exercise Clause, any federal (or federalized) mandate would have to pass strict scrutiny under RFRA.
February 4th, 2013 | 11:51 am
David Nickol,
2 comments – just because courts (including the Supreme Court) have upheld these kinds of mandates doesn’t mean they are right.
Also, the state mandates in general have been legislative, not executive.
February 4th, 2013 | 1:32 pm
David, when the U.S. Supreme Court refuses to hear an appeal it is not the same as endorsing the opinion. The Supremes have yet to rule on the conflict between religious liberty and mandatory contraceptive coverage.
bobster,
In the building where my company is located, there is a very large law firm. On the elevator a few minutes ago, I saw a woman was going to be getting off one one of the firm’s floors. I said, “Are you a lawyer?” She said, “Yes.” I said, “When the Supreme Court denies cert, is it correct to say they have upheld the law?” She said, “Yes.”
It’s true that is not exactly the same as if the Supreme Court took the case and upheld the law, since that would have national implications, and all other such laws could be considered upheld. But if a law is challenged in successively higher courts and the last thing that happens is that the Supreme Court denies cert, that particular law goes into effect, and there is no further judicial recourse for those opposing it.
February 4th, 2013 | 2:04 pm
Second, while state mandates might be tried under the post-EMPLOYMENT DIVISION V. SMITH reading of the the Free Exercise Clause, any federal (or federalized) mandate would have to pass strict scrutiny under RFRA.
Joseph Knippenberg,
The California Supreme Court, in Catholic Charities of Sacramento v. Superior Court of the State of California, applied strict scrutiny and still upheld the law being challenged:
The decision by the California Supreme Court was upheld by the U.S. Supreme Court. (Or, if you prefer, the case was appealed to the U.S. Supreme Court, which denied cert.)
February 4th, 2013 | 4:12 pm
David, I don’t know who you talked to but I have been a lawyer for 28 years and am admitted to practice in the U.S. Supreme Court. There are many reasons for the Supremes to deny cert but if they want to uphold a ruling they will accept the case. Again, the issue has not been decided.
February 4th, 2013 | 4:33 pm
I should add that a primary reason for denying cert is that the particular facts of the case do not present the question of law in a manner that would allow for a clean and clear ruling. The justices may feel that more lower division cases are required before the issue is ripe for the highest court in the land.
February 4th, 2013 | 5:32 pm
DavidNickol,
I wouldn’t necessarily use a California Supreme Court decision to predict anything about what the U.S. Supreme Court would do. Also, the California law is sufficiently different from the proposed regulations that it would probably be misleadng to assume that a decision for one leads necessarily to a decision for the other.
Finally, what’s at issue here is the interaction between state laws that might make providing prescription benefits optional and the Affordable Care Act, which not only requires providing prescription benefits, but (in the case of the contraceptives/abortifacients at issues) requires that they be provided with no co-pay.
February 5th, 2013 | 1:03 am
bobster,
Apologies for pontificating to a lawyer about the law!
I believe it is the case that news media frequently report that the Supreme Court has “upheld” a law when the a lower court has upheld it, there is an appeal, and the Supreme Court denies cert. But I can see why it is not helpful to put it that way.
Next time I will consult you rather than a lawyer in the elevator.
February 5th, 2013 | 5:20 am
Astorian
The proposal appears to be that the insurance companies will be compensated by a reduction in the fees charged to them by the federally-funded Insurance Exchanges. In that case, the cost will be borne out of general taxation.
February 5th, 2013 | 9:46 am
The proposal appears to be that the insurance companies will be compensated by a reduction in the fees charged to them by the federally-funded Insurance Exchanges. In that case, the cost will be borne out of general taxation.
Michael PS,
This seems to be somewhat analogous to taxpayers getting tax credits for, say, contributing to the scholarship funds in Georgia, which we discussed recently. I think if we buy Joseph Knippenberg’s argument in that thread, we can’t say discounted rates offered by the exchanges for insurance companies to pay the cost of contraceptives are “borne out of general taxation.” I don’t buy his argument (or the argument of the Supreme Court), but I think anyone who does has to be inconsistent in arguing that tax credits don’t come out of general taxation and discounts to insurance companies’ fees to join exchanges do.
February 5th, 2013 | 10:45 am
David Nickol
As the fees are presumably designed to cover the running costs of the exchanges, any rebate in fees will have to be made good out of general taxation.
If the fees were intended to yield a surplus, then the revenues of the government are simply diminished and no one is actually paying anything at all
February 5th, 2013 | 11:16 am
Michael PS,
Also, if the contraceptive mandate is successful in preventing a significant number of unwanted pregnancies, there will be not only cost savings to the insurance companies, but a reduction in the number of abortions. It rarely gets mentioned in these discussions, but for those who are not adamantly opposed to contraception under any and all circumstances, there may be significant benefits as a result of the contraceptive mandate.
By the way, American tax dollars have been subsidizing contraception for 40 years under Title X, and contraception is also paid for by tax dollars through Medicaid.
February 5th, 2013 | 11:28 am
Joseph Knippenberg,
It seems to me the New York and California cases are significant because the state laws were actually tougher than it appears the federal mandate will be. I have seen very little written about the legal arguments that religious organizations will have to win in order to do away with the mandate. But it seems to me the key point is going to be whether the regulations “substantially burden” religious exercise. As I understand it, religious organizations now have to take no action at all and spend no money at all, and third parties will provide and pay for contraceptive coverage. I don’t understand how doing and paying nothing can be a substantial burden. And as for the Hobby Lobbies, it seems to me the government should be extremely wary of allowing for-profit companies to challenge laws as if they were religious organizations. The purpose of incorporating as a for-profit company is to make a clear distinction between the corporation and those who own and control it. To claim that a corporation exercises the religion of its owners blurs the separation of the corporation as a unique entity and the owners, who have limited liability for what the corporation does.
February 5th, 2013 | 2:09 pm
David Nickol
Unless a corporation writes its religious commitment into its Articles of Association. I can well imagine a corporation specifying that it will produce only Kosher or Halal products or include an ethical investment clause.
February 6th, 2013 | 1:14 am
“It rarely gets mentioned in these discussions”
For good reason, David. The people in this community are generally smart and enough to understand whatever safe sex benefits that contraception may have in theory is mitigated in the human trials as activity and risk level increase.
February 6th, 2013 | 2:34 pm
To add on to what Charles says. When Nancy Pelosi tells us that 98% of Catholic women have used contraception, the idea that there is some sort of crisis with respect to a lack of access to contraception is absurd. A 2009 study by the CDC confirmed as much. It is widely available, relatively inexpensive, and as David points out, provided at no cost to those below the poverty level. So what is the whole point of this mandate? Why is the Obama administration ordering all companies under the employer mandate, including those with moral objections, to cover something that–again as Nancy Pelosi admitted–everyone already has access to?
To show that liberals don’t actually care about the cost of rising health insurance? To distract the American public from their political difficulties in an election year with the whole “War on Women” nonsense? To enable liberals to make whiplash inducing arguments that they just want to help insurance companies reduce their costs? To enable the demonization of an institution that the base of the Democratic Party despises? Really, what is the point of this whole charade?
Links
Blogs
Find Us
Contact