Religious freedom and contraception

[Bri]

The law does indeed nullify the the Smith decision, in effect by reinstating the Sherbert test.

A congressional law cannot nullify a decision by the Supreme Court. The Smith decision stated that a law may burden the free exercise of religion as long as it is neutral and generally applicable. The Religious Freedom Restoration Act doesn't nullify the Supreme Court decision, but places further restrictions on when the government can burden the free exercise of religion.

I think we are hung up on wording. But words are important in the law. The Constitution specifically says: "Congress shall make no law . . . prohibiting the free exercise [of religion]." It doesn't specify, "except in this case."

Yet clearly there are cases where the government must burden the free exercise of religion, otherwise anyone could claim exemption from any law by claiming it to be against their religion. The Supreme Court ruled that a law is constitutional according to the free exercise clause as long as it is neutral and generally applicable.

So now congress has made a law in reaction to Supreme Court cases laying out that indeed, Congress shall make no law prohibiting the free exercise of religion unless it can demonstrate CGI and LRM. This is the law of the land as it currently stands.

Correct, but that's not what you said originally. The Religious Freedom Restoration Act is a congressional law, not a constitutional law. Congress can pretty much make any law it wants (and rescind laws created previously) as long as it doesn't violate the Constitution.

This is not incorrect. It's right there in the 1st Amendment. The Constitution does indeed explicitly say this.

It is not against the Constitution (unconstitutional) to burden someone's free exercise of religion, as you claimed. It is only unconstitutional to do so if the law is not neutral and generally applicable.

I think we can all agree that the govt has to meet a heavy burden in demonstrating a CGI and LRM. How do you believe that govt. will demonstrate both as regards this law?

I think it's demonstrated that the government has a compelling interest in matters of public health, and specifically in ensuring that health insurance plans are made available to employees that meet minimum standards as recommended by health experts. The government already has similar standards for working conditions.

I also think that the government has met the least restrictive means burden by providing exemptions to Catholic churches and other religious organizations. Catholic-run businesses such as hospitals that hire, offer services to, and accept payment from non-Catholics already routinely pay for contraception, most by offering contraceptive coverage in health care plans. The few that don't already pay taxes that are then used to pay for contraceptives. I don't think the mandate is restricting anyone's free exercise of religion any more than it was restricted before the mandate.

-Bri

 

[xjx388]

A congressional law cannot nullify a decision by the Supreme Court. The Smith decision stated that a law may burden the free exercise of religion as long as it is neutral and generally applicable. The Religious Freedom Restoration Act doesn't nullify the Supreme Court decision, but places further restrictions on when the government can burden the free exercise of religion.

1. SCOTUS strikes down the Sherbert Test in Smith.
2. Congress passes RFRA reinstating Sherbert Test.
In effect, Congress nullified what the Smith decision did -as it applies to the Federal govt; i.e., the Smith decision no longer applies to the Federal govt.

Yet clearly there are cases where the government must burden the free exercise of religion, otherwise anyone could claim exemption from any law by claiming it to be against their religion. The Supreme Court ruled that a law is constitutional according to the free exercise clause as long as it is neutral and generally applicable.

That was the Smith decision. No argument there.

Correct, but that's not what you said originally. The Religious Freedom Restoration Act is a congressional law, not a constitutional law. Congress can pretty much make any law it wants (and rescind laws created previously) as long as it doesn't violate the Constitution.

And that's the key. As it turns out SCOTUS did rule that the RFRA violated the Constitution as it applied to the States.

It is not against the Constitution (unconstitutional) to burden someone's free exercise of religion, as you claimed. It is only unconstitutional to do so if the law is not neutral and generally applicable.

The Constitution says, paraphrasing, "Shall make no law prohibiting the free exercise of religion." That's it. It doesn't also say, "unless it's neutral and generally applicable." That was a SCOTUS opinion which has since been replaced with the RFRA -a Congressional law. But the Constitution makes no qualifications.

I think it's demonstrated that the government has a compelling interest in matters of public health,

No argument

and specifically in ensuring that health insurance plans are made available to employees that meet minimum standards as recommended by health experts. The government already has similar standards for working conditions.

Big argument. This has not been demonstrated.
1. This mandate doesn't affect all employers, only those with 50 or more employees.
2. The opinion of these experts isn't the final word. It's an opinion. But the situation is not so clear-cut.

 

[Bri]

1. SCOTUS strikes down the Sherbert Test in Smith.
2. Congress passes RFRA reinstating Sherbert Test.
In effect, Congress nullified what the Smith decision did -as it applies to the Federal govt; i.e., the Smith decision no longer applies to the Federal govt.

That's just an odd way to state it since a law passed by Congress can't nullify a Supreme Court decision. Smith interpreted the First Amendment differently than it had previously been interpreted, essentially relaxing the conditions by which congressional laws can burden the free exercise of religion. A law passed by Congress can (and in this case did) place further restrictions, as long as those restrictions don't contradict the constitutional restriction that laws must be neutral and generally applicable. But to say that the congressional law "nullified" Smith isn't accurate.

But again, I was commenting on your statement that "the courts have also ruled that you can't force anyone to do things that are against their religion (religious drug use, conscientious objectors, etc.)." That statement is simply not true, because both Smith and the Religious Freedom Restoration Act specify the conditions by which you can force someone to do things that are against their religion.

And that's the key. As it turns out SCOTUS did rule that the RFRA violated the Constitution as it applied to the States.

It was amended in 2003 to only apply to the federal government, but some states have chosen to implement their own similar standards (and some have not, meaning that the Smith standard is the only one that applies in those states). Regardless, we're concerned here about how it applies to federal laws, and unless Congress changes it, the RFRA applies in this case.

The Constitution says, paraphrasing, "Shall make no law prohibiting the free exercise of religion." That's it. It doesn't also say, "unless it's neutral and generally applicable." That was a SCOTUS opinion which has since been replaced with the RFRA -a Congressional law. But the Constitution makes no qualifications.

It actually says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" which is a little less clear. In fact, nobody believes that the intent was to allow religions to make up their own rules, but rather to make sure that laws don't discriminate (either against or for) any particular religious groups. SCOTUS has never interpreted the First Amendment as you have, and even before Smith it was not unconstitutional to force someone to do things that are against their religion as you claimed (before Smith the conditions by which you were allowed to do so were just more stringent). It is wrong to say that the Constitution forbids something that SCOTUS has ruled isn't forbidden by the Constitution.

No argument

If you agree that the government has a compelling interest in matters of public health, then you'd have to explain how the contraception requirement isn't a matter of public health despite the fact that health experts seem to believe that it is.

Big argument. This has not been demonstrated.
1. This mandate doesn't affect all employers, only those with 50 or more employees.
2. The opinion of these experts isn't the final word. It's an opinion. But the situation is not so clear-cut.

I don't see how #1 is relevant as to whether or not there is a compelling government interest in the requirement. The administration has simply given an exemption to companies that would be overly burdened by the requirement (the employees of these companies will still receive the same contraception coverage, just not through their employer).

As to point #2, it's the opinion of the majority of health care experts, which is certainly relevant to whether or not it's a compelling government interest. Your link is irrelevant as the experts who made the recommendation clearly indicated in their report that the recommendation was not based on cost savings.

In my opinion, the "compelling government interest" part isn't problematic. I think it's the "least restrictive means" condition that will be more problematic.

-Bri

 

[xjx388]

If you agree that the government has a compelling interest in matters of public health, then you'd have to explain how the contraception requirement isn't a matter of public health despite the fact that health experts seem to believe that it is.

Well, it goes back to the food/running shoes argument. Just because something is a matter of public health doesn't mean that the government has a compelling interest in making sure it's provided.

I don't see how #1 is relevant as to whether or not there is a compelling government interest in the requirement. The administration has simply given an exemption to companies that would be overly burdened by the requirement (the employees of these companies will still receive the same contraception coverage, just not through their employer).

Then why not everyone get the contraception coverage outside of their employer? The point is that the employer mandate does not serve the general public, only those employed by a large employer who already pays for their healthcare. These people tend to be able to buy their own healthcare How is a government interest served by providing BC coverage for people who are already paying for it if they want it?

As to point #2, it's the opinion of the majority of health care experts, which is certainly relevant to whether or not it's a compelling government interest. Your link is irrelevant as the experts who made the recommendation clearly indicated in their report that the recommendation was not based on cost savings.

The argument is that covering contraception at zero cost will actually be cost negative. This is not supported except in a few papers and is contradicted by others. As Fact Check pointed out, it isn't that clear cut. So if not cost savings, then what? What government interest is served if not cost savings.

In my opinion, the "compelling government interest" part isn't problematic. I think it's the "least restrictive means" condition that will be more problematic.

-Bri

LRM is definitely a problem. The issue could be addressed by simply increasing funding for Title X.

 

[RandFan]

Well, it goes back to the food/running shoes argument. Just because something is a matter of public health doesn't mean that the government has a compelling interest in making sure it's provided.

If running shoes are shown to be cost negative (or at least cost neutral) then it is compelling. If the govt can foster good health then why not? I think you are appealing to what you believe is simple common sense when that is just your intuition.

 

[Bri]

Well, it goes back to the food/running shoes argument. Just because something is a matter of public health doesn't mean that the government has a compelling interest in making sure it's provided.

I disagree. I think that if health experts agreed that offering free food or running shoes would be beneficial then it would probably meet the compelling government interest criteria. If it met the other criteria, it would be legal for the government to do so. Note that just because something is legal doesn't necessarily mean it's a good idea. Congress would of course have to debate the pros and cons (including the benefits and cost) of doing so and pass it into law.

Then why not everyone get the contraception coverage outside of their employer?

Several reasons. What you're talking about is essentially a single-payer system for health insurance (or at least the contraception coverage part), and the Republicans wanted it to be implemented within the current employer-provided health insurance system. I think it would place an undue burden (and cost) on the government to implement the contraception coverage separately from the rest of health insurance. Also, as we've discussed before, it would be no different since the same employers would still have to pay taxes which will still go towards contraceptives (as they do now).

There are also all sorts of laws that apply to employers and cost the employer money. If an employer is religiously opposed to paying for safe working conditions for employees as imposed by minimum safety standards, they probably wouldn't succeed in arguing that the government should pay the costs. This is essentially the same thing -- the government is imposing minimum standards for employer-provided health insurance.

The point is that the employer mandate does not serve the general public, only those employed by a large employer who already pays for their healthcare.

It doesn't have to serve every member of the public in order to serve the public. You could also argue that contraceptive coverage only applies to women and not men. So what? It's a means to accomplish an increase in contraceptive use, which does serve everyone.

These people tend to be able to buy their own healthcare How is a government interest served by providing BC coverage for people who are already paying for it if they want it?

Some of them pay for it and some don't because they can't afford it. It serves a government interest to ensure that as many women who want contraceptives have access to them.

The argument is that covering contraception at zero cost will actually be cost negative.

No it's not. That AN argument, but not THE argument. In fact, the panel that recommended it was clear that the recommendation wasn't based on cost savings at all.

This is not supported except in a few papers and is contradicted by others.

In my opinion, the evidence is fairly strong that it will save money when you consider the costs of an unintended pregnancy including loss of work, costs of birth, and the costs of raising a child (including health insurance for that child). You might also consider the costs of children of that child as well.

As Fact Check pointed out, it isn't that clear cut.

I never said it was. It's an opinion at this point, but one backed by evidence. The evidence isn't conclusive, but most health experts seem to think that it points to cost savings rather than significant cost increases. Regardless, they recommend it for other reasons.

So if not cost savings, then what? What government interest is served if not cost savings.

The government interest isn't limited by cost savings. Otherwise, no government programs would cost money. I can assure you the vast majority of government programs cost money.

LRM is definitely a problem. The issue could be addressed by simply increasing funding for Title X.

That's not clear. Again, you're talking about a single-payer system for contraceptives. And again, there is really no difference between what you're suggesting and raising taxes on employers by the same amount to pay for contraceptives.

-Bri

 

[Neally]

Some of them pay for it and some don't because they can't afford it.

By in large everyone that wants it, gets it. People know that an unwanted pregnancy is way more than the cost of contraceptives. People don't fill their houses with kids just because birth control isn't free.

In my opinion, the evidence is fairly strong that it will save money when you consider the costs of an unintended pregnancy including loss of work, costs of birth, and the costs of raising a child (including health insurance for that child). You might also consider the costs of children of that child as well.

No one argues that kids are expensive. That isn't the point. The point is that people buy their own birth control if it isn't provided. No valid evidence has been presented otherwise.

 

[Bri]

By in large everyone that wants it, gets it. People know that an unwanted pregnancy is way more than the cost of contraceptives. People don't fill their houses with kids just because birth control isn't free.

No one argues that kids are expensive. That isn't the point. The point is that people buy their own birth control if it isn't provided. No valid evidence has been presented otherwise.

About half of pregnancies in the United States are unintended. In surveys, a significant number of women have indicated that there have been times in their lives when they have struggled with the cost of birth control. Are you saying that providing free birth control wouldn't increase their use in the least? I disagree, and so do almost all health care experts.

-Bri

 

[RandFan]

The conspiracy widends.

No longer limited to just Guttmacher, Brookings and Business Group. The conspiracy now includes the touted peer reviewed journal and various sources listed below.

Family Planning as a Cost-Saving Preventive Health Service

It is our hope that the committee will support inclusion of family-planning services in the array of preventive care services. Contraception is the quintessential preventive care service: offering women and men the means with which to plan the timing of their children's births is fundamental to the health of families and society. The goals of the Healthy People 2020 initiative include a 10% increase in the proportion of pregnancies that are intended and a 10% decrease in the number of conceptions that occur within 18 months after a woman's previous delivery. We believe that including the provision of contraception as a preventive care service and thereby eliminating cost sharing for it will be an instrumental step toward achieving, or perhaps exceeding, these goals and supporting healthy, thriving families.

Source Information

From the Office of Population Research, Princeton University, Princeton, NJ (K.C., J.T.); the Department of Obstetrics and Gynecology, Washington University School of Medicine, St. Louis (J.F.P.); the Departments of Obstetrics and Gynecology, Epidemiology, and Population and Family Health, Columbia University, New York (C.W.); Planned Parenthood of the Texas Capital Region and Planned Parenthood of Central Texas, Austin (S.S.); and the Hull York Medical School, University of Hull, Hull, United Kingdom (J.T.).

Of course, we should take care to avoid excluding the middle. It's plausible they got it wrong. It's happened (see Wakefield).

 

[Neally]

About half of pregnancies in the United States are unintended.

Unintended pregnancies <> "I got pregnant because I didn't want to pay for birth control myself."

In surveys, a significant number of women have indicated that there have been times in their lives when they have struggled with the cost of birth control.

"Struggling" with the cost <> "I got pregnant because I didn't want to pay for birth control myself."

Are you saying that providing free birth control wouldn't increase their use in the least?

No valid evidence has been presented showing that employer provided birth control is less expensive to the company than not providing birth control for their employees. People with jobs will obviously still buy and use birth control whether their employer provides it or not. Just as they buy food and running shoes if they want them.

 

[BenBurch]

It also reduces abortions.

-Bri

I've heard preachers tell their flocks that ALL birth control works by causing abortions... Seriously.

So the Christomorons won't ever be able to see reduced abortions as any sort of benefit.

 

[Minoosh]

Something has been bothering me about this issue and I just figured it out. The way I look at it health insurance exists so I can budget for health-care costs. Say my annual premium is $4K with a $1,000 deductible and co-pays. In effect it caps my health-care costs. Not perfectly, but the risk is managed.

But the cost of oral contraceptives is also pretty much fixed. People can budget for it. I'm not sure it's inherently wrong to cost-shift back to the individual when we're talking about manageable, predictable costs. For example, traditionally we draw a line at Rx vs. non-prescription costs. People pick up the cost for their OTC meds all the time. I had the same employer for most of my child-bearing years and can't remember if I ever filed a contraceptive-related claim. Over the years I used sponges, birth control pills, a cervical cap with spermicide, condoms, Depo-Provera injections and a couple of times the morning-after pill. Some of those are OTC and probably totally out of the insurance loop. At any rate coverage didn't dictate my sex life; the costs were always manageable. An advantage of coverage I suppose is it eliminates potential gender disparity of the woman usually shouldering the costs.

Reminds me, there was regular spermicide and extra strength and I never understood that. Like, there are times when I just want to let a few of 'em through?

 

[Bri]

Unintended pregnancies <> "I got pregnant because I didn't want to pay for birth control myself."

"Struggling" with the cost <> "I got pregnant because I didn't want to pay for birth control myself."

Your avoidance of my question noted. So is your straw man since nobody said anything about anyone getting pregnant because they didn't want to pay for birth control themself. Women have, in fact, gotten pregnant because they couldn't afford birth control. Are you claiming that there are no women in the country who can't afford birth control but would be able to get birth control if it was offered to them for free?

No valid evidence has been presented showing that employer provided birth control is less expensive to the company than not providing birth control for their employees.

Nobody ever said otherwise. The research shows that it's less expensive overall, not less expensive to the company.

People with jobs will obviously still buy and use birth control whether their employer provides it or not.

Some will, and some can't afford it.

-Bri

 

[Neally]

Are you claiming that there are no women in the country who can't afford birth control but would be able to get birth control if it was offered to them for free?

The debate is about forcing private companies to offer contraception coverage. I'd say it's a pretty safe bet that if someone is employed, they won't forgo using contraception if it's not covered by their health insurance as Minoosh stated.
As for the general population, that would be something else. As a government provided benefit to welfare or other social service, it might make sense, but again that's not the debate here.

The research shows that it's less expensive overall, not less expensive to the company.

Okay, but the issue is forcing a private company to include it. Nothing has been presented that would cost justify that. People with still use it whether the company pays for it or not.

 

[Bri]

The debate is about forcing private companies to offer contraception coverage. I'd say it's a pretty safe bet that if someone is employed, they won't forgo using contraception if it's not covered by their health insurance as Minoosh stated.

So you think that every woman in the nation who is working can afford any form of birth control that they might need? You think that providing free contraceptives to working women won't cause even a single woman in the country to use birth control? Can you cite any evidence of that, because almost every health expert disagrees with you. There are plenty of women who say that they can't afford the copay for birth control that they need, much less the full cost of birth control, particularly young women and students. In addition, the most cost-effective forms of birth control have a higher up-front cost that is too expensive for many working women.

People with still use it whether the company pays for it or not.

Except for those who can't afford it.

-Bri

 

[RandFan]

Can you cite any evidence of that, because almost every health expert disagrees with you.

Including the New England Journal of Medicine.

 

[RandFan]

An update:

• Everyone who pays taxes still pays for BC due to Title X
• The experts still say it's cost negative and good for employers, employees and society.

Some people still have their panties in a bunch over a mandate requiring people to pay a bit more for BC.

 

[Neally]

So you think that every woman in the nation who is working can afford any form of birth control that they might need? You think that providing free contraceptives to working women won't cause even a single woman in the country to use birth control?

First, not covering "every woman" or finding a single exception isn't the point. Once again, the point is that there has been no evidence that full coverage of birth control on a private employers health plan is less expensive over all than not offering it. By in large people will buy their own if it's not free. Secondly, every woman in the nation who is working doesn't necessarily have employer provided health insurance. Those that do most likely will buy their contraception if the health plan doesn't cover it.

Can you cite any evidence of that, because almost every health expert disagrees with you.

Still waiting for your evidence that coverage of birth control on a private employers health plan is less expensive over all than not offering it.

There are plenty of women who say that they can't afford the copay for birth control that they need, much less the full cost of birth control, particularly young women and students.

And plenty of women can't afford a Mercedes. That doesn't justify forcing someone to buy it for them.

In addition, the most cost-effective forms of birth control have a higher up-front cost that is too expensive for many working women.

The most effective birth control is the IUD and injectables. If a working woman can't afford those, there are other options that are cheaper and still highly effective.

 

[leftysergeant]

The most effective birth control is the IUD and injectables. If a working woman can't afford those, there are other options that are cheaper and still highly effective.

Just your opinion, unless you are a gynecologist, we have no reason to accept it.

Fact is that the way health insurance is sold, and the way that health care gets billed, denying coverage at work shuts some women out of the system.

Then there are sleaze bag pharmacies that refuse to serve trheir areas after they edge out the independents.

As options get fewer, safeguards for woemn have to be built into the system so that the Christofascists can't send them back to the 19th Century as far as thier reproductive rights are concerned.

 

[Bri]

First, not covering "every woman" or finding a single exception isn't the point.

The point is that the recommendation by the panel of health experts will likely increase the use of contraception.

Once again, the point is that there has been no evidence that full coverage of birth control on a private employers health plan is less expensive over all than not offering it.

False. There is plenty of evidence that birth control coverage is less expensive than the unintended pregnancies it would prevent. Perhaps you're reverting back to an argument about costs specifically to the employer rather than overall costs.

Regardless, the panel of health experts that made the recommendation was very clear that the recommendation wasn't based on any assumption of cost savings, so it's disingenuous to claim that cost savings is "the point." It's A point, but not THE point.

By in large people will buy their own if it's not free.

Please define "by in large." If by "by in large" you mean "except for people who won't buy their own if it's not free," then I completely agree.

Secondly, every woman in the nation who is working doesn't necessarily have employer provided health insurance. Those that do most likely will buy their contraception if the health plan doesn't cover it.

True, not every working woman has employer provided health insurance, and not all employer provided policies include coverage for contraception. Sure, some would pay for contraception out of their own pocket. Some wouldn't. Some who have coverage wouldn't if it wasn't free, some because they can't afford the copay. The new requirements would fix that, and would likely increase the number of women who use contraceptives and decrease unintended pregnancies.

Still waiting for your evidence that coverage of birth control on a private employers health plan is less expensive over all than not offering it.

RandFan has provided evidence. There are other studies, some of which were cited in the report by the panel that made the recommendation. The only way I can think of that it wouldn't be less expensive is if a huge number of women switch to less cost-effective birth control. Can you think of another scenario where birth control wouldn't cost less than the unintended pregnancies that would be prevented?

Regardless, cost savings isn't the most important consideration. The panel didn't base their recommendation on cost savings at all, and made the recommendation even if there is a positive cost.

And plenty of women can't afford a Mercedes. That doesn't justify forcing someone to buy it for them.

I completely agree. I suspect health care experts also agree. However, they disagree with you concerning birth control.

The most effective birth control is the IUD and injectables. If a working woman can't afford those, there are other options that are cheaper and still highly effective.

Thank you for agreeing with my point that it's generally more cost-effective to use methods with higher upfront costs that might otherwise be prohibitive to many women.

-Bri