Tag Archives: Obamacare

The Broader Significance of Notre Dame v. Sebelius

Richard Posner

Richard Posner

Current litigation pitting the religious conscience against Obamacare is obviously of interest to those who follow such things from a purely legal perspective. But it can be more than that – it can provide the opportunity for people of faith to ponder how they are to live among others who do not share that faith.  The latest decision (released yesterday) invites us to consider how much separation we should or must have from those things we find objectionable.

Consider the latest scenario in the United States Court of Appeals: Notre Dame is exempt from having to provide contraceptives.  But in order to claim that exemption the institution must complete a form that substantially says

I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.

Notre Dame is required to give copies of the signed form to its health insurance company and the plan’s administrator. EBSA 700Notre Dame objects to this on religious grounds by asserting that, by supplying copies of this form, they are “the cause” of the provision of contraceptives. But in Notre Dame v. Sebelius Judge Richard Posner replies “not so.”

Another way to describe the central issue is whether Notre Dame serves as a “trigger” to the procurement of contraceptives by filling out the form and mailing it. Posner sets forth several reasons why they do not.  To Posner, a more substantial cause is the legal obligation:

The delivery of a copy of the form to [the administrator] reminds it of an obligation that the law, not the university, imposes on it—the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it.

If there’s any joke intended by next using the Quakers to determine if Notre Dame is a “trigger” to contraceptive use, Posner never lets on.  In any case, he asks us to consider the hypothetical of a Quaker who is given exemption from military service, only to raise a religious objection that, because someone else must be drafted in his place, his religion is burdened by the mere existence of a draft.  Posner’s illustration is not entirely analogous to Notre Dame because of the paperwork, but presumably Posner would counter this objection by suggesting that even if the required paperwork is a burden, it is not a substantial burden.

Moreover, Posner points out that, even if Notre Dame were to refuse to sign the form and mail it, its employees and students would still have the right under the law to procure contraceptives through its insurer and administrator.

Generally addressing litigation like that of Notre Dame and Little Sisters , Posner sounds a bit flummoxed:

What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths.

On the one hand, individual conscience is not to be slighted. On the other hand, there are numerous religious faiths, and to accommodate them all according to their necessarily subjective consciences makes it difficult to have laws of general application. Such is the predicament of courts in this latest wave of litigation.

For case-specific reasons, it is not of great significance that Notre Dame lost this battle. More significant is whether subsequent judicial decisions will view these cases by assuming that religious objectors are burdened just because they say they are, or whether courts will analyze the relationship of legal obligations to the alleged religious burden to determine if the religious burdens are objectively substantial.

Roman coinGetting back to how we are to live in a pluralistic society, there are historic models to consider.  If we go back to New Testament times, there is the model of the Pharisees, with barriers constructed between them and the loathsome Gentiles.  Clearly that was not the model of the New Testament Christians.  Christians are not “of the world” but are called to live “in the world.”  There is a presumption that Christians are to even obey “Caesar” unless that obedience is entails disobedience to God. Does a person sin or cause sin if he sells a wedding cake for a gay marriage? For that question as well as the questions raised by Obamacare requirements, the form of Posner’s analysis is likely more helpful than jumping on any bandwagon.



Filed under Church and State, Courts, Culture Wars, Ethics, Free exercise of religion

Arlington v. FCC on the Fourth Branch of Government


Maybe you don’t think much on the role of agencies in today’s America. But with the recently discovered news that the IRS has used its considerable powers to target political enemies and the upcoming role of agencies in the enforcement of Obamacare, maybe you should. Harry Truman said “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing,” and that was when agencies had a considerably more limited role in our lives. That quote can be found in the dissenting opinion (C.J. Roberts joined by Kennedy and Alito) of Arlington v. FCC . That dissent continues:

One of the principal authors of the Constitution famously wrote that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, … may justly be pronounced the very definition of tyranny.” Continue reading


Filed under Courts

New Proposed Rules on the Obamacare Contraception Mandate

A new Proposed Rulemaking has been issued with respect to the “Obamacare” contraception mandate.  It clarifes the obligations of three kinds of employers: religious employers, non profit religious organizations and, by omission, for-profit employers. Continue reading

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Filed under Free exercise of religion, Religious rights

Construction Company Given a Stay Against the Contraceptive Mandate

Preach-it-SistersA United States Court of Appeals has granted a temporary injunction against the “contraceptive mandate” in favor of an Illinois construction company run by Roman Catholics who have a religious objection to contraceptives.

Key to the decision is an issue we have been following here: causation, which involves an analysis of exactly how the religious conviction is impacted.  In this 2-1 decision there was a dissent which followed the analysis of the District Court whose decision was reviewed by Justice Sotomayor: Continue reading

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Causation and Religious Rights: Hobby Lobby Appeals to the Supreme Court

hobby-lobby1We have previously considered the relationship between causation and ethics then applied that analysis to a hypothetical employer being coerced to provide health insurance for contraceptives against the employer’s religious beliefs. Now the Supreme Court of the United States may consider causation as it relates to religious rights in a similar context.

The occasion is an application by Hobby Lobby, Mardel, and their owners, the Green family, for an emergency order against the so-called Obamacare or HHS (Health and Human Services) mandate that would require them to provide health insurance covering abortifacients.

The application describes how the companies operate:

Both companies monitor their merchandise, marketing, and operations to ensure they reflect Christian values. …Petitioners provide their employees voluntary and cost-free access to chaplains, spiritual counseling, and religiously-themed financial courses. … Petitioners close all of their stores on Sundays-at significant financial cost-to give employees a day of rest

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Hints on Obamacare II

Reading Tea Leaves

No time to catch your breath, folks. Now that we’ve seen the Supreme Court’s ruling in Obamacare I, it’s time to anticipate Obamacare II. Obamacare II will likely be one of twenty-three  free exercise of religion cases against the HHS Mandate for employers to provide health insurance that includes coverage of contraceptives. The analysis of that scenario under the Religious Freedom Restoration Act is detailed in National Review; whether or not that author’s conclusions are correct, you can at least walk through the steps of the analysis.

As pointed out by the Washington Post Obamacare I may have a couple hints about how Obamacare II will be decided. Continue reading

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The Architecture of a Republic: Scalia’s Dissent to Obamacare

By now you know the U.S. Supreme Court has ruled on “Obamacare.” You also know it was upheld. But there’s more to know, and you don’t have to read all 193 pages of the ruling to learn it. I’m talking about the beauty of a Scalia dissent, especially this one.

Scalia’s dissent, joined by three other Justices, is not just a bunch of legalese but, rather, directs our attention to the very architecture of the American Republic. Let’s listen to what he has to say.

We’ll begin with Scalia’s sober concluding summary:

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provi­sions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

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