Misconceptions on the way to the Supreme Court

by Doctor Science

As you would expect, I've got my own take on Sebelius vs. Hobby Lobby Stores. Last week, Eugene Volokh did a series of posts about the case; I made some comments, which I'll repost here, along with some other information I've dug up.

Dinah Consoling Hetty in Prison, a sculpture by Francis John Williamson illustrating a scene from George Elliot's Adam Bede. Spoilers [highlight to read]: Hetty is in prison for the crime of "child-murder": she abandoned her new-born baby in the field where he was born. In the end, her sentence is commuted to transportation to Australia, along with the child's father.

This illustration, like all others I've seen and like the BBC production, gets the characters' looks fundamentally wrong. Dinah is rather cool and bland -- not to say boring or plain -- in appearance, while Hetty is extraordinarily *cute* -- Elliot keep comparing her to kittens, lambs, etc. Jenna Coleman is the look they should be going for. But also [highlight to read]: Hetty is attractively "plump" -- enough that no-one realizes she's pregnant.

In reply to the series opener, I wrote:

I'd really like to see you address the issue which jumps out at me, as a scientist:

The corporations' argument is based on a factually incorrect premise. any devices or products that sufficiently risk killing a fertilized embryo, including by preventing implantation of the embryo does *not* include either oral contraceptives nor Plan B. Fertilization occurs several days after coitus; Plan B, and The Pill even more so, don't do anything after conception, including preventing implantation.

As this paper points out, one of the problems in figuring out if contraception interferes with implantation is that a high proportion of "naturally" fertilized eggs don't implant, either. Surely "sufficiently risk" must refer to a risk *higher* than the natural risk, right? In which case even if oral contraception led to 30% of zygotes not implanting, that wouldn't be "sufficient risk" -- that would be business as usual.

It turns out that 30% may be a *drastic* underestimate. A recent study found that 70% of pre-implantation human embryos (i.e. those from the week between conception and implantation, when actual pregnancy begins) contained chromosomal abnormalities, the kind of thing that is usually *really* fatal, long before birth. Many of these embryos are "mosaics" of abnormal and normal cells, and may be able to eject the abnormal ones before they're killed, but these authors (and others) point out that human fertility is quite poor, compared to other mammals. Basically, a *lot* of human zygotes are duds, that could *never* grow up to be a live baby. Conception may be a first, necessary step toward getting an undoubted human being, but it's only a very sloppy, preliminary one.

For instance, William Saletan (who I generally can't stand, btw), reporting on a Pontifical University Bioethics Congress in 2005:

The priests scratch their heads. What does wanting have to do with it? Either the thing can grow into a baby, or it can't. If it can, it's sacred.

What neither Saletan nor the priests realize that, for any given human zygote, whether it has the basic ingredients to grow into a baby is not a sure thing. There may not even be a 50% chance that it can ever have more "peopleness" than a hydatidiform mole or a teratoma -- both of which are, after all, alive and made with human DNA.

The final installment of Volokh's series is less of a legal exegesis than the rest, more of a meditation on the mutual duties of accommodation in a democracy. I commented:

It never ceases to astonish (and enrage) me how much discussion there can be about abortion, contraception, etc., without using the word "woman".

The fact is that Hobby Lobby (et al.) want to restrict the health care benefits they offer to women, specifically. They claim this is because they have a religious belief that killing a zygote is murder -- a belief which is historically novel. Furthermore, as one of the amicus briefs points out, several of the medications they wish to disallow do *not*, in scientific fact, kill zygotes or prevent their implantation.

On the other hand, it is a long-established, traditional belief in many religions that women do not have the same rights of self-determination, self-defense, and bodily autonomy that men do. I do not doubt that many people today have a completely sincere and heart-felt religious belief in the need for women to be submissive, obedient, chaste (if not virginal), and self-sacrificing.

If Hobby Lobby can restrict women's access to certain contraceptives for religious reasons, is there any limit to the restrictions they could place on women's health care? Could they refuse to provide HPV vaccine, because they sincerely believe it encourages sinful promiscuity? Could they refuse to pay for treatments for cervical cancer, which is normally caused by HPV, which is transmitted through sexual promiscuity? Could they insist that contraceptives be only accessible to married women? Could they insist that they only be accessible to married women with their husbands' permission?

IANAL, but I don't see anything that makes Hobby Lobby's rejection of certain contraceptives legally different from any other kind of religiously-justified limitation on women's autonomy.

This was not a very popular position over there. In reply to a commenter who said Additionally, Doctor Science says that the belief that life starts at conception is historically novel. It has been novel for several thousand years. The idea that it does not has also been around for several thousand years. There is a difference between novel and disputed. I replied:

AFAIK, the idea that fully-human life is present from *conception* -- such that killing it is homicide, and causing miscarriage is manslaughter -- is purely 20th century. It is overwhelming the case that before the late 19th C, pregnancy only became "real" at quickening. Even when (post-quickening) abortion was severely punished, I don't believe that accidents or torts believed to cause miscarriage were prosecuted as manslaughter. As in traditional Jewish interpretation of Exodus 21:22, fetal loss is treated as a loss of property or a tort against the parents, not manslaughter against the fetus.

Among the evidence discussed in this paper, for instance, Morgon v. State, 256 S.W. 433 (Tenn. 1923), in which the father of an illegitimate child admitted to having beaten the mother until she gave birth prematurely. He claimed the infant was stillborn, and his conviction for second-degree murder for infanticide was over-turned when the court agreed

there was not enough evidence that the victim had been born alive to sustain a conviction. And in order to convict of murder, the court said, the infant must have "become a reasonable creature in being."

In other words, less than 100 years ago in the US, there had to be a live birth before a death could be called any kind of murder.

In reply to a commenter who said The difference is that Hobby Lobby has no power to limit anyone's autonomy at all. The only power they wish to exercise is the power to choose what benefits they provide to their employees. They're not seeking to prevent anyone else from doing anything, they're just choosing to control what they themselves pay for. I replied in turn:

Medical insurance is part of the employee's *compensation*. By choosing to self-insure, Hobby Lobby is choosing to directly control how their employees spend their compensation. They are seeking to prevent their employees spending their compensation on things they, the owners of Hobby Lobby, believe are wrong.

I Am Not A Lawyer, but a number of you *are*. Tell me what you think.

Comments

[Carleton Wu]

If Hobby Lobby can restrict women's access to certain contraceptives for religious reasons, is there any limit to the restrictions they could place on women's health care?

Can they claim to be Christian Scientists and refuse to pay for any medical care (other than prayer, which is free)? Seems pretty ironclad to me- if Christian Science didn't exist we'd have to make it up (a la Leary's Church of Acid)...

I know it's not the bailing-wire-and-duct-tape version of Constitutional interpretation we have, but Im personally inclined towards an interpretation of the Constitution that doesn't favor religious beliefs etc over other beliefs/desires. A good test of this is the aforementioned Church of Acid- the government should not be in the business of determining which religions are 'legitimate' and which are spurious.

(apologies if that's a bit too thread-jack-y)

[bobbyp]

1. Their claims are scientifically incorrect. Check.

2. They are on that well worn path that seeks to deny autonomy to women (hard to say---needs mindreading skills, but one is free to judge by the company they keep). So hell's bells, check on that one, too.

3.Hobby Lobby can chose to do any number of things. What they cannot do is benefit from the advantageous tax treatment for health care benefits and simultaneously insist on a special exemption from what legally constitutes a health care plan under the ACA.

Check. Check. Check.

If they win this case, then I see no reason why I should not be entitled to a full refund (with applicable 1980's level interest rates) of any and/or all of my tax dollars that contributed directly or indirectly to the following military adventures: Viet Nam, Afghanistan (from Carter onward), Iraq I & II, Lebanon, Grenada, Nicaragua (accounting might be tricky), Somalia, Bosnia, and Libya (to show my bipartisan bona fides) since all of them deeply offended my finely honed moral sentiments.

Having already found the ACA constitutional in nearly all respects*, I would proffer that the Court will not decide for plaintiff in this instance. They are gunning for a better opportunity to overturn Roe. That's the probable big one in our future.

*Although their denial in part rests on a rather new and novel Constitutional doctrine pulled from John Roberts posterior, so the odds are not entirely prohibitive.

[wj]

I think Carleton pretty much nailed it. If the Court rules for Hobby they are pretty much allowing any company to opt out of any law, due to the beliefs of its owners. Medical care, taxes, gun control, drug laws, etc., etc., etc.

Any law can, in principle, conflict with the beliefs of some religion or another. And if it doesn't . . . we can invent a new religion (or a heresy of an existing one) to take care of that. This way lies madness.

So I, too, suspect that the Court will refuse to blunder forth into that mine field.

[Brett Bellmore]

"It never ceases to astonish (and enrage) me how much discussion there can be about abortion, contraception, etc., without using the word "woman".

... They claim this is because they have a religious belief that killing a zygote is murder "

You know, it never ceases to astonish (and enrage) the other side, how much discussion there can be of abortion, contraception, etc., without using the words "baby" or "infant". Even when you get into the later stages of pregnancy, when the "mass of tissue" would be viable if simply relocated to the exterior of the woman. Women often give birth to children at an earlier stage of development than pro-choicers persist in using terms like "zygote".

Do I take Hobby Lobby's position, or even think it sensible? No, the're loons. I'm just observing that both sides in this battle have their extremists, out of the mainstream views, and conspicuous rhetorical eccentricities. Kermit Gosnel didn't continue his slaughter as long as he did without allies, you know.

I don't think this case really hinges on the truth value of the beliefs of Hobby Lobby's owners, any more than it hinges on the truth value of the Obama administration's numerous statements about the ACA. (Roughly equivalent, though I suspect Mr. Green's are somewhat more sincere.)

What it hinges on are questions of rights. No, not the employees' rights, as this case is not about any choice they make. The only people getting to make choices in this case are the management of Hobby Lobby, and the government. The latter determined that people must receive part of their remuneration in the form of contraceptives coverage. And this determination is held by the government to overcome any contrary preference by employer OR employee. BOTH must bow to the government's will.

Or not. See, that's the thing that's going to really destroy the government's case here; Under the RFRA, the government's interest must not just exist, but must be compelling in order to overcome the presumption that an accommodation must be made. And how compelling can the government's interest be, when the government has been handing out waivers by the tens of millions? How can it be simultaneously urgent that the ACA be enforced against the Greens, AND that the administration can waive this, waive that, exempt this group and that?

No, Green is a loon, but I expect this loon is going to win.

[Turbulence]

Is there any reason that Hobby Lobby can't simply require employees, as a condition of employment, to promise that they won't procure birth control of any kind? And of course that contract would apply to dependants as well.

I mean, if Hobby Lobby's religious "beliefs" are impacted by employees buying birth control using compensation directed through a health insurance program, why are those beliefs any less impacted when the birth control purchase is mediated by cash?

Simply banning this behavior in the employment contract seems best from Hobby Lobby's perspective. And surely libertarians would approve of such an arrangement: everyone is free to refuse to work for Hobby Lobby. Just think of what a glorious world we might all live in where every employer dictated our behaviour outside the workplace no matter how irrelevant to our jobs. This company might require 20 hours of exercise a week, this other one might ban voting for Republicans, yet another might forbid attending religious services while a fourth would mandate gun ownership! It would be a libertarian paradise.

[russell]

Under the RFRA, the government's interest must not just exist, but must be compelling in order to overcome the presumption that an accommodation must be made.

For this to be relevant, Hobby Lobby the corporation will have to be found to have religious beliefs.

The only power they wish to exercise is the power to choose what benefits they provide to their employees.

Unless the Supremes want to reinstate Lochner, we are living in a world where employers do not have an absolute right to choose what benefits they do or do not provide to their employees.

So, this will be an interesting case.

I appreciate the difficulty the ACA presents to the Greens, not because I necessarily share their convictions, but because it's a simple fact that people often find themselves forced to choose between their conscience and the law.

But if there is going to be public policy about anything to do with common public life - in short, if there is going to be any public policy that extends beyond the enforcement of private contracts - then there will always be somebody whose conscience is offended.

I'm curious to know if what the Greens are asking for is an exemption for Hobby Lobby specifically, or a rollback of the mandate itself. Does anyone know?

[bobbyp]

Kermit Gosnel didn't continue his slaughter as long as he did without allies, you know.

Name them or provide evidence. Otherwise it is pretty obvious, given your history of bringing this claim up repeatedly, that you are simply bloviating or do not have a f*cnking clue what you are talking about.

The latter (teh government, bp) determined that people must receive part of their remuneration in the form of contraceptives coverage.

Well, it did no such thing.

[thompson]

bobbyp:

Sorry, I'm confused.

"The latter (teh government, bp) determined that people must receive part of their remuneration in the form of contraceptives coverage.

Well, it did no such thing."

Isn't that exactly what the government did? Mandate that (a) insurance has to be provided if the company is over a certain size and (b) contraception coverage has to be included?

Not trying to get between you and Brett, here. But it is a requirement, right? Or did I miss something?

[sapient]

Medical insurance is part of the employee's *compensation*. By choosing to self-insure, Hobby Lobby is choosing to directly control how their employees spend their compensation. They are seeking to prevent their employees spending their compensation on things they, the owners of Hobby Lobby, believe are wrong.

I think that this is the relevant issue here. Not sure what the Supreme Court will decide. But, when a corporation gives its employees "money", can it contol whether the "money" will be spent on stuff it (whatever it is - thank you, russell) decides is okay? No.

The fact is, insurance is something to use and spend.

[Turbulence]

Isn't that exactly what the government did? Mandate that (a) insurance has to be provided if the company is over a certain size and (b) contraception coverage has to be included?

Companies are under no obligation to provide insurance.

[thompson]

"So, this will be an interesting case."

I agree. Not only do I expect that it will be a split vote, I bet both sides are going to have multiple opinions. It's going to be fascinating to see how each justice breaks down the case.

In full nerdyness, I'm really looking forward to listening to the oral arguments.

[thompson]

Turb:

Thanks. I looked it up as well...should have done that before asking. There is a penalty for having more than 50 employees and not offering insurance.

This is colloquially referred to as the "employer mandate", but I agree it's not strictly an obligation.

[Countme-In]

There are eight Hobby Lobby outlets in Philadelphia where Gosnell brutalized his victims.

One might wonder if any of the stores' employees might have found their way into Gosnell's clutches after being denied pharmaceutical coverage by their employer and thereby becoming pregnant.

I mean, one MIGHT wonder ..... if it wasn't for the fact that it wasn't until Obamacare mandated pharmaceutical birth control coverage that the Green's consciences, pure, thorough, and sincere as they are, discovered that their employer-provided health care insurance had been providing such coverage to their employees for years and the results (whatever they are, with a nod toward Dr. Science's new post) were being flushed down Hobby Lobby's ladies toilets across the country for years, one can assume.

Think of the carnage.

It's odd to me that the Green's consciences became so finely sensitive so suddenly.

There's more to this and I suspect it has not much to do with sincerity regarding who's thumping who and what the individuals are using for protection as it does with the recent sabotage lolapalooza of forced sex among the rat species (I think the professional rats call it ratf*cking) practiced by the Republican Party against all things Obama.

At the very least, the Green's owe the President a hat tip for alerting them to the murder they have been perpetrating all these years among their employees.

I spose they can get in line behind the NRA and the Gun Owners of America in the gratitude line, except the latter believe the President forced them to buy guns and ammo while the Green's are being forced to not purchase pharmaceutical birth control for their employees.

Or is it the other way around?

[Turbulence]

I'd love to hear Brett or thompson or someone answer Carleton's question: if I'm a Jehova's Witness, can I offer my employees a health insurance plan that doesn't cover blood transfusions since my religious principles forbid them? Think of how much money I'll save offering insurance that won't have to cover most surgeries!

[jpe]

I don't believe that Christian Scientists believe it is immoral for others to use medicine, so that hypo doesn't really work. ditto Jehovah's Witnesses and blood transfusions.

to say this is going to unleash a torrent of exceptions is just goofy.

[jpe]

" But, when a corporation gives its employees "money", can it contol whether the "money" will be spent on stuff it (whatever it is - thank you, russell) decides is okay? No."

When a company provides a noncash benefit of course they can control what it is.

[thompson]

Turb/Carleton, I'll weigh in, but I really have little interest in ACTUAL case. I just think the oral arguments and opinions are going to be really interesting, purely from a fine legal perspective.

My opinion on the hypothetical, briefly (because I need to get some work done), is this is one of the reasons I don't want employers providing health insurance. Or, more accurately, employer-based health insurance as a preferred method of coverage in our society.

Because it puts us in the position of having to weigh someone's (or some corporation's) conscience against public interest and employee rights.

And yeah, "corporations having a conscience" is ridiculous on its face. But I do think people who run corporations and shareholders, etc, should be allowed to exercise their collective conscience through the corporation.

Some people probably disagree about that, I think it probably is going to end up being a fundamental difference. So, feel free to say I'm wrong on that, I don't really want to try to convince anybody I'm right.

And obviously, if you disagree that "corporations have a conscience" the answer is pretty obvious: corporations do whatever you tell them.

But, for the sake of argument, I'll proceed with the basic assumption that corporations have some level of "conscience".

You're left balancing compelling state interests against that "conscience".

As I don't think employer-provided insurance is a compelling state interest, I'd probably side the religious objector.

If you did find employer-provided insurance a compelling state interest, you'd side differently.

In the specific case, I don't find either side very compelling. I think contraception (and yes, I'm talking prescription) pretty easy to get and not that expensive. My monogamous mate and I used to purchase it without insurance, even when we were very poor. I had friends that got it for free at planned parenthood. I don't recall this being a huge issue.

OTOH, paying into an insurance policy that includes the possibility of the coverage being used to buy contraception? I don't like telling people the dictates of their conscience...but that seems like a stretch to me.

And with that, I really need to run. I hope I provided some level of answer to Carlton's question.

[bobbyp]

"So, this will be an interesting case."

I suspect not:
1. Employers are not forced to be in business.
2. Employers are not forced to provide health insurance to their employees.
3. Employers and/or their corporate entities are not being forced to use contraceptives, although I would argue that would not be a bad idea...you know, thinning the herd.
4. The government interest is most likely compelling, but I suspect the Court will not tackle this assertion head on.

The Supreme Court will probably weasel out on this one citing the fact that the Greens are NOT the "the corporation" and have no standing....but with the 5 clown conservative majority...who knows?
For those of you interested, you can read the 10th circuit's decision, complete with dissents: http://www.ca10.uscourts.gov/opinions/12/12-6294.pdf

[bobbyp]

When a company provides a noncash benefit of course they can control what it is.

Within limits. EIRSA which see.

[Turbulence]

When a company provides a noncash benefit of course they can control what it is.

Is that true even when the benefit is financed by the federal government?

Let's say that the federal government gives employers a special tax break if they provide a commuting benefit (paying for parking passes or subway or train passes). Can a company take the benefit if they insist that it only applies to employees who don't drive SUVs?

My understanding is that they cannot, that the feds define the criteria for the tax break and that employers can't just apply their "conscience" to arbitrarily limit those benefits should they choose to provide them.

[russell]

There is a penalty for having more than 50 employees and not offering insurance.

Sometimes it costs you something to be true to your conscience when it conflicts with the law.

it wasn't until Obamacare mandated pharmaceutical birth control coverage that the Green's consciences, pure, thorough, and sincere as they are, discovered that their employer-provided health care insurance had been providing such coverage to their employees for years

If this is so, then I withdraw my earlier statement to the effect that I'm sympathetic to the Green's position.

Seriously, if you have any kind of cite for this Count I'd be interested in seeing it.

ditto Jehovah's Witnesses and blood transfusions.

If I understand it correctly, the JW position is that blood represents life and is sacred to God. And, therefore, should not be used or consumed once shed.

That's not particular to who uses or consumes it, so strictly speaking I think you mis-state their position.

What they don't do is insist that their scruple be respected, in the form of exemptions from the law, by people who aren't JW's.

RFRA or no RFRA.

When a company provides a noncash benefit of course they can control what it is.

No, not really.

Workers compensation, parental leave, etc., all non-cash compensation, and all governed by law.

[Dan S.]

This comment has no legal content and rather more heat than light, but:

Gosnell indeed did have allies of a sort, albeit unknowing ones. Ironically, they were anti-choice folks in PA state government (and to an extent, nationally) -
http://www.huffingtonpost.com/kate-michelman/kermit-gosnell-abortion_b_2924348.html
As the HuffPo post (along with most other more or less in-depth coverage) noted, his allies also included local anti-choicers: one of his victims reported that she had originally headed to Planned Parenthood, but was frightened off by the protesters (and frankly, I can't blame her).

Doctor Science writes: "It never ceases to astonish (and enrage) me how much discussion there can be about abortion, contraception, etc., without using the word "woman"."
Brett responds: "You know, it never ceases to astonish (and enrage) the other side, how much discussion there can be of abortion, contraception, etc., without using the words "baby" or "infant"". Even when you get into the later stages of pregnancy, when the "mass of tissue" would be viable if simply relocated to the exterior of the woman. Women often give birth to children at an earlier stage of development than pro-choicers persist in using terms like "zygote".".

It's true that you can find people on the pro-choice side (personally, the 'my daughter is nobody's broodmare' side) who may use scientific terms inexactly or inaccurately - describing a fetus as an embryo or even zygote - or who talk about a "mass of cells" in a rhetorical mirror image of anti-choice ads that use photos of adorable chubby months-old infants. But note how much this fails to be an actual parallel to Doctor Science's quote. 'Embryo', 'zygote', 'mass of cells' - these may be rather clinical or not used accurately or whatever, but they're basically referring to the same thing, pointing to the same place, as 'baby' as used by anti-choicers (or joyfully-expectant parents-to-be). Whatever the emotional charge, they're still centering on - or at least including in the picture - the li'l thing growing inside a woman's womb. The actual parallel would be if antichoicers consistently, relentlessly talked about 'mothers' or 'blessed vessels' or whatever, but Doctor Science's point is that so, so often women get virtually written out of the picture. - The difference between, one could say, defending a war by depicting brave, incredibly patriotic soldiers who feel it is both sweet and fitting to die for their country, vs. defending a war in a way that often hardly makes any mention of soldiers at all.

[Doctor Science]

russell: you asked If this is so, then I withdraw my earlier statement to the effect that I'm sympathetic to the Green's position.

The petition states:

After learning about the contraceptive-coverage requirement, Hobby Lobby “re-examined its insurance policies,” discovered that they already covered certain FDA-approved contraceptives to which the Greens objected, and proceeded to exclude those contraceptives from the Hobby Lobby plan.

[Countme-In]

Thanks Dr. Science.

I read the same language on a post on another blog a few days ago. Unfortunately, I can't remember which one and googling at Russell's request turned up nothing, but that's probably the fault of my phrasing in the search box.

I should have placed my original cite in my favorites at the time for later reference, figuring I'd trot it out here at some point.

At any rate, nothing prevents Russell or anyone else from being sympathetic to the Green's position, even with this revelation. It would seem to a layman like myself however that the scrupulousness and/or convenience of the Green's consciences could be called into question in a Court of Law.

Natch, I don't trust the current political tactics of the conservative side enough in these latter days of the Republic to buy the idea that all is above board here.

Powerful influence and money are lurking behind the Green's Potemkim-like village of suddenly convenient pristine morality.

Or maybe, as some complain about the number of pages in the Obamacare legislation, Hobby Lobby's healthcare policies are book length like mine is and thick with small print.

Maybe it was too long for the Green's to bother reading.

But it's the private sector. I thought all written communication in the private sector was presented in a maximum of one page and a handshake because everything is so simple and efficient in private life.

They must have to hire bureaucrats too. I hope they pay them well and provide birth control in their health insurance.

[bobbyp]

Thank you, Dan S.

[Hartmut]

I had friends that got it for free at planned parenthood.

Although that is beyond the scope of this thread, we should not forget that PP is very high on the 'to kill' list of the same crowd that fights the ACA based on 'religious beliefs'. And (parts of) the anti-choicers are now very open about contraceptives being the next cause celebre after Roe (which they believe is already dead in essence if not the letter by successful denial of access in more and more places). If you call that a fringe position, but for Romney the GOP would have almost nominated a POTUS candidate* last time that spoke openly about that.

*the one one cannot google because it's NSFW due to a neologism coined after him

[Brett Bellmore]

"Name them or provide evidence."

"Steven Massof estimated that in 40 percent of the second-trimester abortions performed by Gosnell, the fetuses were beyond 24 weeks gestational age," the grand jury states. "Latosha Lewis testified that Gosnell performed procedures over 24 weeks 'too much to count,' and ones up to 26 weeks 'very often.' ...in the last few years, she testified, Gosnell increasingly saw out-of-state referrals, which were all second-trimester, or beyond. By these estimates, Gosnell performed at least four or five illegal abortions every week."

Here, read it. Yes, Gosnell had allies, he routinely got referrals for his illegal abortions. Yeah, he had allies, the health department completely stopped investigating abortion clinics after Governor Ridge took office, even ignoring complaints delivered directly to their door.

Every ideology has a spectrum. The pro-life movement has people ranging from me, who only objects to abortions after a functioning nervous system is in place, to clinic bombers. And the pro-choice movement runs from it's public face of moderates protecting access to contraception, to Kermit Gosnell, and beyond, to the advocates of infanticide.

As loons go, the Greens are fairly harmless. All they want is to not be complicit in something they don't like. They don't insist that it stop, just that the blood they see not be on THEIR hands.

But, as we see so often when the left gets power, 'liberals' don't have a lot of use for anybody else's freedom of conscience. Don't want to be complicit? Retire to a monastery. (While they're still permitted.) Or move to Somalia. You figure it's your world, we just live in it, so get with the program, or get out.

[Brett Bellmore]

More allies from the Grand jury report:

"Janice Staloski of the Pennsylvania Department of Health, who personally participated in the 1992 site visit, but decided to let Gosnell slide on the violations that were already evident then. She eventually rose to become director of the division that was supposed to regulate abortion providers, but never looked at Gosnell despite specific complaints from lawyers, a doctor, and a medical examiner. After she was nonetheless promoted, her successor as division director, Cynthia Boyne, failed to order an investigation of the clinic even when Karnamaya Mongar died there. Senior legal counsel Kenneth Brody insisted that the department had no legal obligation to monitor abortion clinics, even though it exercised such a duty until the Ridge administration, and exercised it again as soon as Gosnell became big news. The agency’s head lawyer, chief counsel Christine Dutton, defended the department’s indifference: “People die,” she said.

Lawyers at the Pennsylvania Department of State behaved in the same fashion. Attorneys Mark Greenwald, Charles Hartwell, David Grubb, Andrew Kramer, William Newport, Juan Ruiz, and Kerry Maloney were confronted with a growing pile of disquieting facts about Gosnell, including a detailed, inside account from a former employee, and a 22-year-old dead woman. Every time, though, they managed to dismiss the evidence as immaterial. Every time, that is, until the facts hit the fan."

How's that for names?

[Countme-In]

As it happens, Brett, for what's it's worth (nothing) since neither of our consciences had a rat's patootie to do with the Gosnell travesty, Gosnell not having consulted either of us regarding the free exercise of his psychopath's conscience, I agree with you in your condemnation of Gosnell and the criminal regulatory collapse of the Pennsylvania Department of Health in the matter of regulating abortion clinics.

You wrote:

"But, as we see so often when the left gets power, 'liberals' don't have a lot of use for anybody else's freedom of conscience."

As it happens, too, Governor Tom Ridge stopped Department of Health annual inspection and oversight of abortion clinics including Gosnell's, not something my conscience would have tolerated were I in a position of power since I believe in a robust, jackbooted regulatory state in the area of healthcare and its safety, efficacy, and at the very least, sanitation.

The point being that Tom Ridge is a man of the Right, albeit a pro-choice Republican and despite being a law and order advocate, who curtailed regulation that had been carried out prior to his terms as Governors by both Democratic and Republican Administrations.

This scandal, though different in kind, reminds me of the purposeful blinders placed on the SEC and other federal financial regulatory agencies by the Bush and Clinton Administrations as Bernie Madoff aborted people's financial accounts, despite the matter being brought to their attention many times.

As to what this has to do with a discussion of the Green's claim to conscience over regulation and anyone else's consciences questioning the Green's consciences over birth control, I'm at a loss.

In the Madoff and Gosnell cases, my conscience's preference for tight government regulation was borne out.

Your conscience's preference for a much lighter regulatory hand was not.

But we seem to agree that regulators failed.

How is that?

Finally, it may be that my conscience's preference for easily obtainable birth control through all healthcare schemes, private and government might be a result of my conscience's effort to make sure abortion is rare, safe, and
otherwise regulated, regardless of nervous system development.

It might be that your conscience's preference for allowing the Green's consciences to regulate the consciences of their employees in regard to birth control will end up with more abortions being performed.

But you are on the side of looniness, not me, in this case.

I understand, you want things to be strictly by the Constitutional book, which, by the way, I was just reading the other day (again, am I going to need a link?) one of your revered Founders, Thomas Jefferson, believed that Constitutions, including ours should be ripped up and replaced every 19 years because not to do so, would result in coercion and a diminution of freedom by the old teenaged Constitution.

But he said a lot of loony his own self, the more I read about the watering of trees at Monticello.

I suspect had birth control been available in Jefferson's time, he would have spiked the slaves quarters water supplies with the stuff, with an eye toward preventing the sullying of his reputation for posterity by the existence of questionable offspring.

Or maybe not, seeing as how he could sell off the offspring.

I'm sure he'd let his conscience be his guide in the matter.

And handcuffs for the rest of us.

[Doctor Science]

Brett:

I honestly don't understand what you think you're proving by bringing up Gosnell.

Here's an overview of how I understand the case.

From the pro-choice POV, Gosnell is emblematic of what we're trying to *prevent*. He was the back-alley abortionist, the *opposite* of Planned Parenthood.

Women came to Gosnell because the pro-life movement was *successful*: successful at restricting access to abortion, successful at making abortion more expensive, successful at putting delays into the process of getting an abortion (and every delay increases the danger and expense of the operation), successful at making women afraid to admit that they might need one, and successful at shaming them when they went to decent clinics like Planned Parenthood.

It's actually an anti-choice activist who wrote that a woman "wants" an abortion Not like she wants a Porsche or an ice cream cone. Like an animal caught in a trap, trying to gnaw off its own leg, a woman who seeks abortion is trying to escape a desperate situation. This gets quoted by pro-choice activists a lot, because it really does evoke the desperation an unwanted pregnancy can cause, and how the fear can be like (and can actually *be*) the fear of death or captivity.

The women who went to Gosnell were *desperate*, driven to the last extreme. They felt -- and possibly they *knew* -- they had no other choice, because so-called "pro-life"rs had made sure they didn't.

[russell]

Why are we talking about Gosnell?

Also, Dr. S, thanks for the cite.

To be honest, I'm not that surprised that the Greens were unaware that stuff they didn't like was covered in the insurance plan they have had up to now. I don't necessarily see an opportunistic or politically motivated situation here, on their part, they likely simply don't want to be involved in paying for stuff they believe is wrong.

Which, once again, puts them in the same situation as nearly every human being in any society or culture that has ever existed.

You can ask the society as a whole to accommodate your conscience, but you also have to recognize that the answer might be "no".

At that point, it's on you to make whatever adjustments you need to make to be consistent with what you believe.

I appreciate the Green's position, but there are several hundred million other people living in this country. They get a say, too.

[Doctor Science]

Brett:

Women often give birth to children at an earlier stage of development than pro-choicers persist in using terms like "zygote".

Huh? When I, at least, say "zygote" I mean zygote, a single cell.

I am objecting to the people who call that cell a "baby" or a "person". In the Hobby Lobby case, the issues are about the moral status of the first week of development, the stages *before* pregnancy. Calling a zygote, morula, or blastula a "person" whose rights need to be balanced against those of the mother is IMO obscene, and the fact that the woman is often not even mentioned just emphasizes the obscenity.

I imagine that what you're talking about is use of the word fetus:

An unborn offspring, from the embryo stage (the end of the eighth week after conception, when the major structures have formed) until birth.

Sorry, dude, that's what it's *called*. There is no standard medical term for "a fetus developed enough that maybe, if you're lucky, it can survive birth."

[cleek]

to the advocates of infanticide.

examples?

[Countme-In]

In the interest of furthering the interests of my loony conscience against all other interests in America, I want all uninsured grownups, who have been denied Medicaid by the perennially conscience-stricken, and further left to die without treatment for their diseases -- we're talking millions here -- to be legally designated as mature zygotes, blastulas, morulas, we'll call them persons for short, whose rights need to be balanced against those of all of us mothers out there and healthcare regulation shall be adjusted accordingly across the board.

I expect Randall Terry et al to advise his colleagues in the abortion-clinic bombing community that a portion of their incendiary devices, bombs and large-clip abortion doctor-killing weaponry be redirected toward the politicians and medical institutions who refuse the funding for medical care for those who can not pay.

Yes, these grownup fetuses may become dependent and thus eminently killable by neglect to some, but my conscience is my guide.

Also, I do not expect to receive a bill, because I've decided here and now that I am against all taxes.

Figure it out, people.

My conscience is armed and damned impatient.

[Brett Bellmore]

"But we seem to agree that regulators failed.

How is that?"

I don't think they did fail. I think they succeeded. It's just that the thing they were trying to do was not the thing the law said they were supposed to be doing.

Suppose I somehow, with my views, ended up in charge of the BATF. If a firearms manufacturer were selling new machine guns to the public illegally, it were reported to me, and nothing happened, would you leap to the conclusion that I'd failed?

If somebody who's pro-choice is put in charge of regulating abortions, and they end up rather spectacularly NOT being regulated, I'd assume this was what they'd set out to do.

And, again, no, this court case isn't about the rights of the employees, at all. The mandate is as much a mandate against employees as employers, it is the government over-riding both their choices, to impose it's own.

Personally, I'd rather my health insurance were just catastrophic coverage, and the difference were dumped into my HSA. But the ACA doesn't respect that choice anymore than it respects the Greens' choices. It's all about the government making the choices, and a future administration, under the ACA, could just as easily decide contraceptive coverage made a policy a "Cadilac" policy, and fine companies offering it.

Granted, "Fetus". A pro-choicer would have called my son a "fetus", not an infant, five seconds before he was delivered, and many would have been ok with him being killed at that point.

Oh, and Singer advocates infanticide, nor is he alone. How about Alisa LaPolt Snow, the Planned Parenthood lobbyist?

The reason I brought this up was just to point out that irrational, even widely regarded as outrageous views, are not the solitary province of the pro-life movement. Pro-choicers have some pretty bloody handed extremists themselves, and often in positions of serious authority.

On the scale of reproductive opinion views, the Greens may be irrational, but they are, as I said, pretty harmless loons. All they want is to not be complicit in what they object to.

That's a good thing to offer one's foes, not being complicit. It lets them have the option of going on with their lives, instead of forcing them to become your devoted enemies. Unless you share Conan's view of what's best in life, and just want to hear the Greens scream, you really shouldn't object to the RFRA applying here.

[McKinneyTexas]

Medical insurance is part of the employee's *compensation*. By choosing to self-insure, Hobby Lobby is choosing to directly control how their employees spend their compensation. They are seeking to prevent their employees spending their compensation on things they, the owners of Hobby Lobby, believe are wrong.

I Am Not A Lawyer, but a number of you *are*. Tell me what you think

I don't think the kind of coverage an employer voluntarily purchases for his/her/its employees is controlling how an employee spends his or her compensation-the benefits are whatever they are.

When an employer is required by law to provide certain benefits, i.e. there is no volitional act, are you saying the employer has no right to question the burden imposed by the gov't? Seriously? We all just fall in line and do as we are ordered to do?

Can you explain why it makes sense to include BC and maternity benefits in a single male's coverage? Other than "because the gov't says so"?

The compensation argument is as tortured as is the pretense that this is about scientific ignorance of the earliest stages of human life.

The next step is employer funded abortion. This is the dry run. Let's be honest and have this conversation: can the federal gov't compel any and all employers to provide the financial wherewithal to fund abortions? Any limit on the timing of the abortion--9th month/healthy baby, ok to abort?

[Tony P.]

Aside from Brett, does anybody think that "the left" has power in the US?

And if we lefties do have power, why is abortion still confined to "clinics" instead of being available in hospitals like other medical procedures?

--TP

[Countme-In]

"A pro-choicer would have called my son a "fetus", not an infant, five seconds before he was delivered, and many would have been ok with him being killed at that point."

Which pro-choicers on this board would be ok with any of that, either the language or the deed?

Do we have the number connected to "many" in the general population who are pro-choice who believe that strict formulation

I wouldn't, despite being pro-choice with plenty of reservations.

Now, if he (let's use a hypothetical baby five seconds before term, not your son or mine to avoid somewhat the cringe factor) were killed five seconds before birth by a burst of machine gun fire from weapons illegally purchased while the BATF turned a blind regulatory eye and you turned out to be the Director, I would in fact think you had failed, because to believe that you believed that you had succeeded with such a dreadful result would be unthinkable for me and unconscionable for you.

I couldn't bring myself to believe that you would do that, Brett.

I would, however, expect little more than silence or flapdoodle demagoguery from Wayne la Pierre regarding questions about his organization's lobbying to make such a result a reality.

[russell]

are you saying the employer has no right to question the burden imposed by the gov't?

No.

But the reply to the questioning might be that you are still obliged to do whatever it is you don't want to do.

In all of this discussion, people are talking about "the government" as if it's some weird intrusive space alien presence.

The government is mandating the coverage that the Greens don't like because OTHER PEOPLE WHO ALSO LIVE HERE want it.

If there we no constituency for birth control coverage in insurance plans, then there would be no issue.

Look, if you start a business, you have entered the public world. You are no longer a purely private actor, and you are now accountable to things other than your personal beliefs and preferences.

That's life.

Can you explain why it makes sense to include BC and maternity benefits in a single male's coverage?

For the same reason that prostate cancer screens, or treatment for testicular cancer, would be covered in a woman's.

[thompson]

as usual, russell is dead on:

"You can ask the society as a whole to accommodate your conscience, but you also have to recognize that the answer might be "no"."

There's a lot a value judgments and balancing of concerns in the determination of "yes" or "no". I think Free Exercise is one of the hardest things to get right.

That's why I think the case will be interesting, because Free Exercise is essentially balancing someone's "sincere beliefs" against a "compelling interest". With some other legal factors on top.

And thanks to whoever (I want to say bobbyp) posted the opinions on the current case. I found them fascinating.

[hairshirthedonist]

When an employer is required by law to provide certain benefits, i.e. there is no volitional act, are you saying the employer has no right to question the burden imposed by the gov't? Seriously? We all just fall in line and do as we are ordered to do?

I think they should get their day in court. But they'll have to live with the outcome if it doesn't go their way. If it turns out that way, they can choose to pay the penalty rather than provide coverage they object to. No one's being sent to the Gulag under the ACA, as far as I know.

[russell]

These questions, from Doc S's original post, seem relevant to me, and I'd like to hear Brett and McK's reply to them.

is there any limit to the restrictions they could place on women's health care? Could they refuse to provide HPV vaccine, because they sincerely believe it encourages sinful promiscuity? Could they refuse to pay for treatments for cervical cancer, which is normally caused by HPV, which is transmitted through sexual promiscuity? Could they insist that contraceptives be only accessible to married women? Could they insist that they only be accessible to married women with their husbands' permission?

And yes, I understand that what we're talking about is Hobby Lobby's contribution to an insurance policy that covers this stuff, not HL's direct action to prevent other people from doing or using them.

But how far does this go?

What if my personal beliefs are that a woman shouldn't work if she has children? Can I fire female employees if they get pregnant?

Why not? Because the law says I can't?

What's the limit to this? Or is there one?

[Sebastian H]

"From the pro-choice POV, Gosnell is emblematic of what we're trying to *prevent*. He was the back-alley abortionist, the *opposite* of Planned Parenthood."

He was the front alley abortionist, with a license and everything. His crime was ignoring the small sets of safeguards that pro lifers have been able to get for very late term fetuses, and which NARAL wants to remove (and which they successfully undermined leading up to his case).

Progressives seem to have forgotten how tolerance works when it works. My thing on hobby lobby is that exposes the problems with government mandates instead of government doing things. One of the key ways we typically allow for tolerance is by saying that while your tax money gets divided up for government use via democratic principles, we try not to actively force you to participate in things you find repugnant beyond that. I.e. We won't make you recite the pledge etc. the most direct solution is to have the government provide contraception. You get that by finding the votes to get tax money to pay for it. The tolerance question is mitigated by the common pool of taxes and the voting on the use of the taxes. When you mandate a thing and then have a regulatory agency create rules they would have trouble getting through the democratic process you end up attacking our best known method of allowing tolerant disagreement. So when you use that method, you should probably allow pretty easy exemption if you still value tolerance.

[Countme-In]

Here's another curtailing of freedom, proposed by Republicans this time, that I agree with.

No snakes yapping on cellphones on planes.

http://talkingpointsmemo.com/livewire/republicans-want-to-keep-airplane-phone-ban-in-place-because-of-the-noise

I 'm not so sure I would keep the ban on fistfights during flights because of the chance that I might spill my drink, and then of course the real fighting would commence.

I do think I should be able to call the pilot at intervals during my flights just to keep tabs on the leadership behind the locked cockpit doors, as kind of a check and balance.

"Captain, Countme-In here again. Say, there's an oily smudge developing on the right wing at the periphery of the engine. What says your oil gauge on this heap?"

"Sorry, Captain, if I brought my tiny of package of peanuts up to the cockpit, would your co-pilot, who's probably not doing anything at the moment, be willing to tear them open with HIS teeth, because I just had dental work?"

"Yo, Capitan, the Count, Seat 74! Hey look, your lovely female attendant and I just exercised our Mile-High Club membership privileges in your fine accommodations, and I know this query may be a little after-the-fact, but I was wondering about the fine print in your company's employee healthcare plan regarding female contraception? .... Hello? Captain? Is this thing on?"

"Me again. I have an incredible urge to start screaming as if my hair was on fire after that last air pocket you hit. Can we watch that, please."

"Thanks for sending the on board constable back to my seat to let me know that further calls to you will result in the entire Homeland Security apparatus boarding the plane after landing and precipitating a fistfight with me. I'm a guy who appreciates a fair warning. By the way, that guy is ripped. Ten-Four."

[Countme-In]

"One last question, captain. Did you see Denzel Washington in "Flight". Could the engineering tolerances on this thing really withstand flying upside down, I mean, if we had to?"

[cleek]

Can you explain why it makes sense to include BC and maternity benefits in a single male's coverage?

single men become fathers.

fathers have an interest in healthy mothers (if for no other reason than that helps ensure healthy children).

[wj]

Aside from Brett, does anybody think that "the left" has power in the US?

Actually, Tony, yes. Because most people define "the left" to mean "people more liberal than me," just as they mostly define "the right" to mean "people more conservative than me." Granted, there are some (and percentage-wise more here than in the general population) who carve out a chunk for "the center" -- meaning "people who generally pretty much agree with me, but not on absolutely everything."

Still, the basic principle holds. And on average, people more liberal than Brett do have power in the US. They would be considered serious conservatives across most of the rest of the developed world. And would have been considered conservatives even in the US as recently as the 1980s. But they are more liberal than Brett and so his statement is correct.

[Countme-In]

Before Obamacare, some health care policies for single and married WOMEN didn't include much in the way of BC and maternity benefits.

Consciences everywhere slept peacefully.

[hairshirthedonist]

Yes, there are a number of coverages that might not apply directly to the primary insured under certain circumstances. But I thought the law was already too long and complicated. (I hear it's quite wordy.)

How many more "if ..., then..."s do we want to add, just so people can avoid the particular coverages they don't need at any given moment? (Risk pooling's a sticky wicket, especially when you have an atomized, zero-sum view of things.)

[russell]

Thanks Seb for a very thoughtful response.

Two things.

First, what the Greens are being asked to do is the contribute to an insurance plan that covers stuff they object to. They aren't being asked to do the stuff they object to, they aren't being asked to directly pay for it for others.

How does make what is being asked of them any different than "your tax money gets divided up for government use via democratic principles"?

Is there some magic in the difference between tax money and mandated employee compensation?

I'm not seeing the daylight. It might be there, but I'm not seeing it.

The other thing I'd mention is that many folks would L-O-V-E LOVE for health insurance to be provided directly by the government, but that is not available. It's an utter non-starter.

So, this solution:

the most direct solution is to have the government provide contraception. You get that by finding the votes to get tax money to pay for it.

is off the table.

Personally, I'd be fine with Hobby Lobby getting an exemption, however I find their doing so based on the RFRA to be absurd. If we're looking for folks grasping at any-port-in-a-storm straws to get their way, you can find your example right there.

I'm sorry for the Greens' situation, but extending freedom of religious to for-profit corps via the RFRA is crap.

[Doctor Science]

Brett said:

If somebody who's pro-choice is put in charge of regulating abortions, and they end up rather spectacularly NOT being regulated, I'd assume this was what they'd set out to do.

I don't know for a fact that all the lawyers you cited call themselves "pro-choice"; do you? My assumption has been that they didn't regulate Gosnell because his clients were poor, nonwhite, and included many poorly- or un-documented immigrants, and that they just. didn't. care.

I *do* know that governmental regulation of abortion clinics is a political football that attracts all kinds of grandstanding, so it's quite possible that the regulators in question played Hot Potato with any abortion clinic problems that came up, and devoted their time (which they doubtless didn't have enough of) to tasks they might complete without getting into a media circus.

Because government regulation is so politicized, decent abortion providers have their own organization, the National Abortion Federation. Gosnell applied for membership and was turned down for being not up to standard, but since they don't have any legal force behind them, they couldn't close him down.

The grand jury report says:

Many organizations that perform safe abortion procedures do their own monitoring and adhere to strict, self-imposed standards of quality. But the excellent safety records and the quality of care that these independently monitored clinics deliver to patients are no thanks to the Pennsylvania Department of Health. And not all women seeking abortion find their way to these high-quality facilities; some end up in a filthy, dangerous clinic such as Gosnell’s.

[Carleton Wu]

this is one of the reasons I don't want employers providing health insurance

Im not sure if many people are *for* this as a general proposition. It's a question of how badly we want to disrupt the current system I think- moving too quickly could cause some serious problems. otoh, moving too slowly and we have to live with variations of the current (quite imperfect) system.
At least what we've got now 1)doesn't make self-employment a game of russian roulette and 2)has the potential to be changed in ways that would allow us to jettison the employer-based system. And, 3)can be easily merged with a public option, but don't tell Brett.

But I do think people who run corporations and shareholders, etc, should be allowed to exercise their collective conscience through the corporation.
Some people probably disagree about that...

I think it's not so much disagreeing on the general point- I think we'd both agree that this can be at most no more absolute than the individual's right to exercise their conscience. That is, it runs up against all manner of other rights and responsibilities in the society.
And especially when the activity is voluntary- forcing everyone to serve in the military is unfair to pacifists. Forcing everyone who wants to run a business with 51 employees to treat their employees in a certain way has IMO a higher bar for questions of religious conscience, because it's a perfectly avoidable activity.

I don't think employer-provided insurance is a compelling state interest, I'd probably side the religious objector

I think that's taking liberties with the concept of 'compelling state interest'. That isnt (or shouldnt be) license for judges to impose their political views of the 'correct' political resolution to problems, just a way of preventing the state from failing to try to reach a reasonable accommodation, imposing something that isn't actually necessary to the matter at hand. For example, forcing people to take off their hats in court if they've got a religious prohibition.
Otherwise, judges will be throwing all kinds of stuff out of the system based on personal preference. This judge invalidates the laws against smoking pot because he thinks pot is harmless. That judge throws out laws enforcing minimum wages bc he thinks there's no compelling state interest. etc.

[hairshirthedonist]

One of the key ways we typically allow for tolerance is by saying that while your tax money gets divided up for government use via democratic principles, we try not to actively force you to participate in things you find repugnant beyond that.

So you agree with the monetary penalties that allow people and companies not to participate if they find certain coverages to be repugnant, leaving it to the government to do the dirty work.

Sometimes you find support for the ACA where you'd never expect it. ;)

[Tony P.]

McTx ...can the federal gov't compel any and all employers to provide the financial wherewithal to fund abortions?

"Financial wherewithal" is money. If you pay your employees money to work for you, they can spend it on abortions. Unless you propose to pay them in scrip, redeemable only for things you approve of, then you're already compelled to "fund abortions". And boner pills. And boob jobs. Not to mention campaign contributions to communists. But it's more The Free Market, and not so much The Government, that compels you to provide "financial wherewithal" to people who work for you.

--TP

[russell]

I do think people who run corporations and shareholders, etc, should be allowed to exercise their collective conscience through the corporation.

Whose conscience is included in the "collective"?

Owners?
Board of directors?
Executives?
Employees?
Creditors?

Hobby Lobby is an unusual case because it is so closely held. For any publicly traded for-profit company this idea would become absurd virtually immediately.

But, for the sake of argument, I'll proceed with the basic assumption that corporations have some level of "conscience".

Where is this conscience located?

[Brett Bellmore]

Carlton, I'm afraid judges are kind of stuck inquiring into whether these things are "compelling state interests", given the RFRA. Of course, Congress can over-ride that any time they want, but that requires that contraversial policies like the contraceptive mandate be included in legislation, instead of invented afterwards by regulators. Congress wouldn't like that, they might have to accept the blame.

[Carleton Wu]

His crime was ignoring the small sets of safeguards that pro lifers have been able to get for very late term fetuses, and which NARAL wants to remove (and which they successfully undermined leading up to his case).

That was one of his crimes. Perhaps you should familiarize yourself further with the case- he ran a profoundly dangerous and filthy practice: untrained staff, expired medications, no records, medical waste & blood & urine & cat shit everywhere, patients drugged without any monitoring, unsterilized equipment. He's alleged to have performed an abortion on a minor against her will. He committed serial malpractice resulting in at least one patient death and many cases of serious avoidable harm.

So no, it's not the case that his only crime was "ignoring the small sets of safeguards that pro lifers have been able to get for very late term fetuses".
It's not the case that he was merely on the extreme of the pro-choice movement, or somehow representative of it, or that his crimes were committed with the tolerance of anyone in the government due to ideology.

[Carleton Wu]

How's that for names?

Entirely insufficient to support your claim. Bureaucratic incompetence and laziness do not demonstrate "alliance" with Gosnell, any more than a lazy parole officer is an 'ally' of a criminal who uses his negligence to commit crimes.
Ally suggests that they shared a common goal and worked towards it in a cooperative fashion. As does your rhetoric about how Gosnell was just on the extreme fringe of the pro-choice movement (as opposed to being a criminal who *harmed women*- you may want to adjust your understanding of the pro-choice movement if you think that someone who kills women is somehow emblematic of it).
If the local police fail to close down a crack house (despite signs and warnings from neighbors) *because they're lazy*, that doesn't mean they have an ideological belief in the Healing Powers of Crack or that they've become anti-drug-law libertarians. Just that they're lazy.

I don't think they did fail. I think they succeeded. It's just that the thing they were trying to do was not the thing the law said they were supposed to be doing....
If somebody who's pro-choice is put in charge of regulating abortions, and they end up rather spectacularly NOT being regulated, I'd assume this was what they'd set out to do.

If you imagine that being pro-choice is all about the joy of executing fetuses (and who cares if some women are hurt in the process), then this could possibly be correct. Since it's got nothing whatsoever to do with that, this is a bizarre fantasy scenario out of some seriously messed up place in your head.

to the advocates of infanticide

examples?

Well, the Newton shooter is obviously on the fringe of the pro-choice movement, amirite? Although typical liberals won't acknowledge their own extremists.

[Carleton Wu]

This is the dry run. Let's be honest and have this conversation

Oooh, Ive got a better idea- let's be honest and talk about what we're talking about, rather than treating anyone's conspiracy theory as if it were the only reasonable topic of conversation.

Any limit on the timing of the abortion--9th month/healthy baby, ok to abort?

Yeah, that's *totally relevant* to whether the RFRA protects corps when they want to exercise conscience to not provide mandated healthcare. How is every thread on ObWi not actually an abortion thread? Since clearly everything liberals do is aimed at killing womb babies since that's our favorite thing.

[Carleton Wu]

Carlton, I'm afraid judges are kind of stuck inquiring into whether these things are "compelling state interests", given the RFRA.

I am saying that reading "compelling state interest" as "what do I personally, as a judge, think the government ought to do in this situation" is wrong. If considerable deference isn't given to the legislative and executive branches concerning what constitutes a compelling state interest, then there's no other consistent standard to apply.

[hairshirthedonist]

Where is this conscience located?

On a server?

[Carleton Wu]

I don't believe that Christian Scientists believe it is immoral for others to use medicine, so that hypo doesn't really work. ditto Jehovah's Witnesses and blood transfusions.

They don't act like mainstream fundies in trying to push their religious prohibitions on everyone else- perhaps through an excess of good manners and common sense, perhaps through a recognition of their relatively small numbers & how this would be both futile and harmful to public perception of their religion.
But those are both strong prohibitions in the religions themselves: Christian Scientists believe that all illness is spiritual illness, not just that all illnesses of Christian Scientists are spiritual illnesses. And Jehovah's Witnesses believe that transfusions are prohibited by the Bible.

Like the "compelling state interest" issue above, I think one can only be in favor of this if one imagines that it'll be limited to 'my' side. If anyone's religion can be the basis for objecting to the law, or if any judge can decide for themselves what the government "ought" to be doing, it'd being the kind of chaos only an anarchist could love. So I suspect this is one of those Bush v Gore things, where the decision is convenient in the moment but absolutely does not apply in other cases.

[russell]

How is every thread on ObWi not actually an abortion thread?

No worries, when Brett gets tired of Gosnell we'll start in on the guns.

Where is this conscience located?

On a server?

I'll go code one up right now!

[thompson]

Carlton:

"I am saying that reading "compelling state interest" as "what do I personally, as a judge, think the government ought to do in this situation" is wrong."
AND
"That isnt (or shouldnt be) license for judges to impose their political views of the 'correct' political resolution to problems, just a way of preventing the state from failing to try to reach a reasonable accommodation, imposing something that isn't actually necessary to the matter at hand."

Yeah, agree with all that. There is a lot that goes into determining what is "compelling." I think the opinion is actually a good read on that, to see what goes into determining "compelling". I know I learned something.

Admittedly, I glossed over the complexity of it all with a phrase like: 'if the judge found it compelling' or something like that. I didn't mean to imply that it was up to a coin flip or the judge's personal views. If that's what you took from it, I agree 100% that that way lies madness and a hodgepodge of laws passed from the bench, not democracy.

On the specific case, I don't find it legally "compelling" for a number of reasons. One, I'm not compelled (in the personal sense) by either of their claims. Beyond that, the law has a number of exemptions. Fewer than 50 employees. Grandfathered plans. Religious employer exemptions. Etc. In that context I find it hard to say that relaxing the mandate against Hobby Lobby is really changing that much in the application of the law.

The exemptions doesn't mean there isn't a compelling interest in Hobby Lobby providing contraception. But I think it makes the argument a little harder. YMMV.

"If considerable deference isn't given to the legislative and executive branches concerning what constitutes a compelling state interest"

Yep. I agree. I think part of the complexity of this lies in action of the executive in applying the ACA *potentially* conflicts with the RFPA. I'm not suggesting that judges should run roughshod over legislative decisions based on their personal mores.

"Im not sure if many people are *for* this [employer-based healthcare] as a general proposition."

Yeah, I've never gotten the impression a lot of people are for employer-based healthcare in general. Just that's its the middle ground we ended up with. And that there is political power in an appeal to the devil you know. I think it was an appeal made by both sides before and after the ACA was passed. "Like your plan, you can keep it" or general appeals

"I think it's not so much disagreeing on the general point- I think we'd both agree that this can be at most no more absolute than the individual's right to exercise their conscience."

I was trying to leave open that some people probably disagree if a corporation has a right to exercise their conscience. I agree most (I'd say all, but I'm sure someone has a counterpoint) people don't want to interfere with right to conscience unless necessary.

Russell:

"For any publicly traded for-profit company this idea would become absurd virtually immediately."

Yeah, I agree it would in 99.99% cases. I'm willing to leave the door open to the concept, even though I'm not entirely clear how a publicly traded company would demonstrate a "sincere belief" or a "conscience".

In other words, I don't see how it would work, but I'm not going to dismiss it out of hand. Exxon is free to bring the suit...I just doubt they will convince anyone that they hold a "sincere belief".

It's a lot more clear cut for me how it would work for a privately held company. Where the "conscience" is located? In the actions and beliefs of the executive officers, and a consistent history of such. Which brings us to 'should Free Exercise apply to for-profit corporations?' Which I'm pretty sure we disagree on, but that's fine.

It's probably the most contentious point, and its one of the first ones to tackle. Really, if it doesn't apply, there's not much more to say.

In my mind, a lot of the nitty-gritty details of the case, like "compelling interests" and "sincere belief" only come up if you assume Free Exercise and the RFPA do apply. So, I apologize if when I discuss those points, I implicitly assume they do apply. In my mind, if they don't...well, this case gets boring very fast.

[thompson]

"On a server?"

Heh. I'm sure there's a linux distro that supports conscience.

Windows Server? Not so much.

[CharlesWT]

The government is mandating the coverage that the Greens don't like because OTHER PEOPLE WHO ALSO LIVE HERE want it.

Yes, rule of the majority. The minority can just suck it up.

If there we no constituency for birth control coverage in insurance plans, then there would be no issue.

Everybody likes "free" stuff.

..., they can choose to pay the penalty rather than provide coverage they object to.

Employers taking this route take a double hit. They not only have to pay the penalty, they also have to increase wages to offset the lost of the insurance benefit.

...forcing everyone to serve in the military is unfair to pacifists.

Forcing anyone to serve in the military is unfair.

[byomtov]

Can you explain why it makes sense to include BC and maternity benefits in a single male's coverage? Other than "because the gov't says so"?

Yes. I can, rather easily. I'm glad you asked, in fact, because I read this sort of argument fairly often and find it, pardon me, annoying.

When a woman becomes pregnant there is normally a male, surprisingly often a single male, involved in the process. While it is true that the woman bears the entire physical burden of the pregnancy there is no good reason she should have to bear the entire financial burden as well. It seems quite reasonable to me to say that the father should bear, say, half of the cost of prenatal care, childbirth, etc. perhaps the percentage might be adjusted, in either direction for various reasons, but 50-50 is surely a fair starting point.

I'd add that if you want to identify those treated unfairly by having to pay for maternity benefits you might note that a man may be fertile well past the age when a women can no longer bear children.

[russell]

In the actions and beliefs of the executive officers

Why just the executives? What about the owners (if they are not the same as the executives), or other investors?

Why not the creditors, don't they have a stake in what the company does and does not do?

Why not the employees, they actually implement the operations of the company, doesn't their point of view come into the "position of conscience" of the overall organization?

A group of people associating specifically for the purpose of advocating a point of view can plausibly be said to embody the "conscience" of the group, at least as regards that point of view. Because that's the basis of the association.

So, the directors of the NRA on the topic of 2nd Amendment rights, the directors of the Sierra Club on environmental issues, etc. All OK with me.

Other than that, I'm not seeing it. Not at a level that requires all of the rest of us to make allowances for it.

You could make a stronger case for Mardel, maybe, also owned by one of the Greens, which sells, specifically, Christian lifestyle stuff like homeschooling materials etc.

Hobby Lobby sells crafter stuff. They're not a religious organization.

If we want to grant corporations recognition of a conscience, under the law, which the rest of us must respect and observe, then I want a conscientious lever, under law, which all must respect and observe, with which to push back when corporations due the kinds of callous destructive inhumane crap that they do every day.

If the executives' personal conscience is to be expressed through the corporation, than I want access to the executives, *personally*, when they do stuff I object to, for my own moral and religious reasons.

Do you want my list? How much time do you have?

What's good for the goose, right?

Corporations do stuff every day that would land my natural human @ss in jail if I tried it on.

"That's just business" is what we hear at those times.

If that's just business, this is just business. You can't have it both ways.

I'm sure there's a linux distro that supports conscience.

Ubuntu.

[thompson]

"Like the "compelling state interest" issue above, I think one can only be in favor of this if one imagines that it'll be limited to 'my' side."

I think people can be in favor of allowing for a balance between conscience and state interests, even with full knowledge that it will mean sometimes exceptions and accommodations for others are carved into laws that mesh with their conscience.

To use an example that has come up...I have no problem granting a pacifist an exception during a draft. Even though its unfair to people that don't share that view.

I'm sure everyone on the board can think of laws that are overall good but they wouldn't mind having exceptions for a small number of people based on sincere convictions.

"If anyone's religion can be the basis for objecting to the law, or if any judge can decide for themselves what the government "ought" to be doing, it'd being the kind of chaos only an anarchist could love."

I think it can be, but that those objections have to be hashed out based on sincere belief, burden, and compelling interests. And that will be determined by judges and justices. Hopefully on the basis of law and precedent, not on their personal opinions.

I don't see a good way of cutting the courts of the loop without either (a) rejecting all claims of conscience (basically assuming that the legislative is the way to determine these claims) or (b) accepting all the claims (which I think would be a bad idea for a whole host of reasons that people have already pointed out).

[russell]

Everybody likes "free" stuff.

Insurance coverage is being offered by Hobby Lobby as part of the employee's COMPENSATION. Which is the employees' DUE, because they EARN IT, by WORKING.

Don't be a jerk.

[thompson]

"I'm sure there's a linux distro that supports conscience.

Ubuntu."

Not since Unity

[Nombrilisme Vide]

But it's more The Free Market, and not so much The Government, that compels you to provide "financial wherewithal" to people who work for you.

Lies. You take away those communist regulations forcing captains of industry to provide benefits, minimum wages, and suchlike, while simultaniously getting rid of the morally despicable government "social safety net", and we'll see in a hurry that the Free Market is certainly not what's compelling takers to receive the financial wherewithal to do anything more than commute, eat, and purchase the minimum shelter necessary to stay healthy enough to work their sixteen-hour shift.

(The Secure Compensation Receipt for Individual Purchases cards come next.)

[Brett Bellmore]

Yes, I'm sure that's why I make several times the minimum wage: Because there's an obscure regulation setting the wage for engineers higher than for janitors. Otherwise my employer would pay me in kitchen scraps and a fresh refrigerator crate each year.

[bobbyp]

Yes, rule of the majority. The minority can just suck it up.

Under most circumstances, this is exactly what takes place. Do you have a problem with this, Charles? (bobbyp asked good naturedly)

What is the minority being asked to do here? They are being asked to provide health insurance that covers particular things. In return, they get a huge tax break.

It is perfectly OK for them to not offer health insurance to their employees. They have choices....unlike those who happened to be born, you know, female.

[Carleton Wu]

On the specific case, I don't find it legally "compelling" for a number of reasons. One, I'm not compelled (in the personal sense) by either of their claims. Beyond that, the law has a number of exemptions. Fewer than 50 employees. Grandfathered plans. Religious employer exemptions. Etc. In that context I find it hard to say that relaxing the mandate against Hobby Lobby is really changing that much in the application of the law.

Any time the government sees fit to offer an exemption to prevent a one-size-fits-all law from causing harm in edge cases, it would then be open to the claim that those accommodations with edge cases make the core of the law inapplicable to anyone who can make a religious claim against it (ie basically anyone, unless the state is going to start being the arbiter of 'reasonable' religious claims).
The only solution I can see to that problem would be the government *not* allowing for exemptions in edge cases where everyone agrees the costs outweights the benefits, lest a precedent be set. And I admit, I can only see that sort of situation being useful to libertarian types who would use that as a jumping-off point for attacking the entire law- ie make it unwieldy, and then blame it for being unwieldy.
Examples: if the government allows for a religious organization to kill animals without some of the normally mandated health or safety protections, all corps will be able to claim the right to avoid those protections on 'religious grounds' + existing exceptions. Religious groups that can currently discriminate by religious affiliation in hiring would open the door to any corporation claiming the right to do that on religious grounds + existing exceptions.

I think it can be, but that those objections have to be hashed out based on sincere belief, burden, and compelling interests. And that will be determined by judges and justices.

I admit to cringing a little bit at this. Who gets to decide 'sincere belief'? What constitutues an 'undue burden'? I suspect that, despite your best intentions, these become ways of smuggling in majoritarian beliefs while keeping the ability to discriminate against minirity beliefs. Catholics can serve wine to minors, but peyote is forbidden. Christians can object to paying for birth control, but Christian Scientists cannot object to paying for hospitalization cos that's just 'unreasonable'.

I don't see a good way of cutting the courts of the loop without either (a) rejecting all claims of conscience

Well, I do think there are plenty of claims where the state obviously can't show any possible compelling interest, where I think we can all agree. The earlier example of baring one's head in the courtroom being an example. I recall as well a case where a city (or county) tried to inconvenience a hindu temple out of their jurisdiction via zoning-type laws, and again as long as they could show a pattern of discrimination I think we can agree that the state doesn't have a compelling interest to do that.
But where the state has a clear purpose that it's allowed to pursue and there isn't an easy way around it, Im not at all sure that allowing some claims of conscience to proceed while blocking others based on 'sincere belief' etc is a good idea. Some ideal of a judge might be able to do this impartially; the actual judges that we have are IMO almost certain to err dramatically on the side of conventional thinking, belief systems, and personal political preference.

If there is a place for picking and permitting religious accommodations where the state *does* have a compelling interest, it's the legislature IMO. Let it be done in sunlight, in plain text, for everyone to see. Better than than some Alabama judge deciding that kosher or halal are acceptable choices in prison but hare krishnas are a cult and don't get to pick their diet.

[Sebastian H]

Russell, I'm not sure what you mean by magic, but taxing and spending is the most typical way we launder conscience issues. We consider the distance provided by that process as enough that we don't allow conscientious objection. So for example I can't avoid paying taxes for the immoral drug war, but I don't have to turn in my friend for having a joint and if I run a business I'm usually not required to drug test and turn my employees in to the cops. Muslims don't have to directly buy pork, but they have to pay for pork inspectors if we decide to spend tax money on them.

As for compelling state interest, we allow conscientious objection from the draft, even knowing that will mean some other person will get drafted and have to fight and perhaps die.

If we are going to move away from the tax and spend model of avoiding conscientious objection, we are going to need to look seriously at how mandates work unless we are just abandoning the virtue of tolerance. Maybe we need less tolerance in society. I'm not convinced.

[Carleton Wu]

topical: Oklahoma legislature finds itself trying to reject a Satanist monument after approving Ten Commandments monument. IMO better to avoid religious displays by the state, but if you're going to have them, there are consequences...
[Part of me desperately hopes to see this reach the Supreme Court, if only for the guilty pleasure of reading Scalia's opinion].

[DBN]

AFAIK, the idea that fully-human life is present from *conception* -- such that killing it is homicide, and causing miscarriage is manslaughter -- is purely 20th century.

Tertullian was hardly writing in the 20th century, and yet, he believed life began with conception. This was hardly a non-trivial consideration among the early church fathers, as it had important bearing on the doctrine of original sin. Augustine disagreed with the position, and Aquinas settled on quickening.

[Countme-In]

"If that's just business, this is just business. You can't have it both ways."

The Mafia, drug dealers, hackers, and the porn industry (that one always gets me, that "industry" is what the porn folks are up to) all say, "We're businessmen", or "We're trying to run a business here" or "It hadda be done, that's the way business is done."

Just as nearly all goods and services are slotted in the big bin called "product". "We need to get product out the door, people" they declare, about I-pads, condoms, literature, religious music, skyscrapers, Priuses, extension cords, ice-making equipment, vaccines, underpants, machine guns, torture chambers named Strawberry Fields .. you name it.

It's all the same to them. Nothing is special. You gots your inputs, your outputs, your debits and your credits. You gots your molecules, your protons, your neutrons.

Move that inventory. What inventory? Whatever it is you got. Move it.

The vig is all you need to know.

All can be justified by using the word "business", including government.

[dmbeaster]

Citing Gosnell in this discussion is identical to citing Eric Rudolph, Scott Roeder or other anti-choicers who murder the abortion doctors. If Gosnell is allegedly mainstream as suggested by some here, then these murderers would also represent mainstream anti-choice beliefs.

In other words, citing to the most loony extreme examples of behavior by one side proves nothing and demonstrates the lack of merit in your position.

[Turbulence]

taxing and spending is the most typical way we launder conscience issues

Just about every government regulation implicates someone's conscience or sincere religious belief. When the government restricts how much mercury you can emit into the air, that violates the conscience of Christians who believe that they have a Biblical injunction to profit form industry and let God take care of the Earth.

When the government requires you to pay for workman's comp for your employees, that violates the conscience of employers who believe accidents only happen to the sinful and that those who are right with God suffer no accidents.

These aren't hypotheticals; I've know people who sincerely believed these things.

I don't see on what basis you, or any court for that matter, can decide which of these beliefs are sincere or heart-felt. And I don't see why it should matter. Can someone, anyone, explain what objective test determines which of these things are sincere religious beliefs that should merit exceptions?

[russell]

We consider the distance provided by that process as enough that we don't allow conscientious objection.

Yes, Seb, that's the point I thought you were making.

My reply was basically that being required to contribute to an insurance plan, that included coverage for birth control methods you find objectionable, which might or might not be used by other people, to pay for products or procedures that *they* might or might not use, is sort of an equally remote distance.

I personally pay for stuff that hits a lot closer to home than that, and which I find objectionable, via taxes.

I was just trying to understand if there was some aspect -- some "magic" -- whereby this happening via mandated employee coverage, as opposed to taxes, was especially bad.

If it's just a matter of the distance, I'm not sure the Greens have a strong case.

[Carleton Wu]

We consider the distance provided by that process as enough that we don't allow conscientious objection.

Apparently some groups have religious exemptions from paying into Social Security (IRS Form 4029:Application for Exemption From Social Security and Medicare Taxes and Waiver of Benefits).
And, of course, there are *all kinds* of laws that demand behavior, not just taxation to subsidize the state's actions. Depending on jurisdiction and relationship you may have a 'duty to rescue'. You are compelled to report some crimes or events (eg child abuse, death, arson). You can be compelled to comply with police directives under some (non-arrest) circumstances.
A white supremacist (even one with religious grounds) can be compelled to hire minorities. A Muslim woman could be compelled to show her face to strange men in the context of a police lineup or courtroom.
And once you've decided to open a business, you've opened yourself up to a large number of legal compulsions. The ACA is just one of literally hundreds of legal obligations to employees, customers/clients, government agencies, etc. Obligations that the government *could* tax and handle for you, but it doesnt, because this is just not a legal/moral principle that our society uses.

If we are going to move away from the tax and spend model of avoiding conscientious objection...

So I think that this is not the case at all now. On the one hand, we don't typically allow conscientious objection to general federal spending, but it is not the case that this is our mechanism for *resolving* issues subject to conscientious objection.
I cant think of a single example of something that is funded via taxation *expressly* for the purpose of laundering the moral taint, as it were.

[Sebastian H]

You don't give up all your rights just because you open a business. The government can regulate business things for businesses. Regulating minimum wages makes sense because paying wages is an integral function of employment. Providing contraception isn't. No one thought it was until about eleven months ago, and it never would have passed Congress (so invoking democracy and minorities should just get over it seems a bit much).

[thompson]

Carleton:

"I admit to cringing a little bit at this. Who gets to decide 'sincere belief'? What constitutues an 'undue burden'?"

I can go on about this for a long time, but I'm not an expert, the terms of art are delicate, etc etc I can try, if you want.

I again thank bobbyp for linking the court opinion, repeated below for your convenience. I bring it up because the answers to your questions are, fairly clearly, in the opinions, both majority and dissent.

http://www.ca10.uscourts.gov/opinions/12/12-6294.pdf

Give it a read, I found it really fascinating and educational. Not saying you're going to find it persuasive one way or the other, but it gave me some fluency with the legal framework and supporting case law is.

" I suspect that, despite your best intentions, these become ways of smuggling in majoritarian beliefs while keeping the ability to discriminate against minirity beliefs."

I think that's a concern, certainly, but in the opinion they cite precedent where its used to protect minority practices. And I think in general the courts can act as a check against disenfranchising a minority. It's not a perfect one, I know I have my complaints about it...but I hardly think courts are more sensitive to the tyranny of the majority than the legislature.

"Catholics can serve wine to minors, but peyote is forbidden."

I'm pretty sure peyote is legal for use in native american church practices. Could be wrong...someone who knows more want to weigh in?

Or if you mean in general, I think peyote should be legal. But I think that's probably off topic.

But I really encourage you to give the opinion a read.

[russell]

I'm pretty sure peyote is legal for use in native american church practices.

Yes, it is, and in fact was one of the issues leading up to the passage of the RFRA in the first place.

You don't give up all your rights just because you open a business.

You don't give up any of your rights just because you open a business. That's not the question.

The question is whether the *business* has rights, and what they are. Hobby Lobby is owned by the Greens, and run by the Greens, but it is not the Greens, and it's not the Greens' money paying for the insurance.

Further, in this particular case, we're talking about whether the business inherits *your* rights, just because you own it or run it. Because businesses per se are incapable of having a religious faith, or expressing one.

Regulating minimum wages makes sense because paying wages is an integral function of employment. Providing contraception isn't

And, remarkably, no-one is asking the Greens to provide contraception.

They are being asked to contribute to a health insurance policy that might reimburse whoever actually does provide contraception, should a covered employee decide they want it.

And, they are not doing so to be nice people, they are doing so as part of the employee's compensation.

Why is it legitimate to make rules about the minimum wage that you may pay an employee, but not what must be in an insurance policy you offer as part of compensation?

Last but not least, the Greens have options other than knuckling under to the tyranny of the state. They could simply not include health insurance as part of the compensation, which would be a giant PITA for everyone, but at least their consciences would be clear.

I'm not trying to be dismissive, and frankly I would be fine with Hobby Lobby being given an exemption as long as that did not become some kind of precedent establishing freedom of religion for for-profit corporations.

Because, FWIW, IMO that makes a farce of religious faith. Who will have strong religious convictions next, Exxon? Monsanto? The Bank of America?

Spare me, please.

I'm just pointing out that there are a number of sides to this.

[CharlesWT]

···Yes, rule of the majority. The minority can just suck it up.

Under most circumstances, this is exactly what takes place. Do you have a problem with this, Charles?

Supposedly, the constitution and the rule of law prevent tyranny of majorities over minorities. That doesn't always seem to be the case.

They are being asked to provide health insurance that covers particular things. In return, they get a huge tax break.

They shouldn't be required to provide insurance that covers any particular thing. Or required to provide insurance all. And they shouldn't be getting any kind of tax break at all.

....unlike those who happened to be born, you know, female.

So, being born female is a disability requiring redress under the law?

[wj]

Where is this conscience located?

On a server?

Actually, because we're old school, we've got it backed up on tape. But if we ever decide we need it, we can restore it to a live file. Only temporarily, however, because we don't want it around inhibiting our other business practices....

[wj]

thompson: I have no problem granting a pacifist an exception during a draft. Even though its unfair to people that don't share that view.

But what we actually do is provide for pacifists to do non-combat service. That actually does support the military's activities, for example by doing medical stuff that someone in the military would have to do. It just doesn't require them to personally fight. But they still have to serve in some capacity.

Which would seem to be analogous to telling Hobby that they don't have to personally perform abortions, but they do have to pay into the pool of funds which does so, just like everybody else.

[CharlesWT]

Actually, because we're old school, we've got it backed up on tape.

Wow! Even more old school than the federal government!

[russell]

But what we actually do is provide for pacifists to do non-combat service.

Or, go to jail. Which not a few folks have done, in order to honor their conscience.

I'm reading the opinion cited by bobbyp and thompson, and where they land is that the RFRA applies to Hobby Lobby, because the RFRA simply mentions "persons", and the rules of interpretation as laid out in the US Code are that, in the absence of anything saying otherwise, the word "person" is intended to refer to corporations of all sorts as well.

Just ask the authors of the 14th Amendment, they'll tell you so.

So, IMVHO, the law is on the side of the Greens. Unless the feds can demonstrate a compelling public interest, which is not out of the question.

Can't wait to see who sprouts a robust religious conscience next.

[thompson]

"the Greens have options other than knuckling under to the tyranny of the state. They could simply not include health insurance as part of the compensation, which would be a giant PITA for everyone"

Also cost the company around $26 million a year in additional taxes. Oddly, if they offered a deficient plan it would be over 400 million/yr.

That would be quite a PITA. Whether or not that rises to the level of "burden" legally is the question.

And, of course, the larger question of can a for-profit corp exercise religion.

[Carleton Wu]

I'm pretty sure peyote is legal for use in native american church practices. Could be wrong...someone who knows more want to weigh in?

I think it is now- it was a court case a while back that overturned this (and the reasonable Sherbert test) in favor of government-can-do-what-it-wants. Thus leading to the RFRA.
So that should've been 'peyote was forbidden' (although it wasn't actually forbidden in the Smith case either, exaggerated for dramatic effect :) ).

Sherbert wasn't a bad place, but I do have a problem with it. And the peyote case goes to the core of it- some people can claim a religious faith and take peyote. Others can claim a religious faith and aren't permitted, bc the court decides that their religious belief isn't "sincere" enough. And no one can have a religious faith that allows them to take LSD, despite it's profound (religious-like, even) effects.
I don't like government making those kind of choices. But I *particularly* don't like judges making those kind of choices.
Where I feel the court needs to step in is where eg a legislature attempts to discriminate against a belief indirectly (eg the hindu temple example from above).

Thanks for the link- can't read now, but hopefully tomorrow. And, as usual, enjoy talking with you.

[Carleton Wu]

You don't give up all your rights just because you open a business.

You give up the right to not be compelled to do some things eg associate with black people, people of other religions, etc when you run a business. So the argument that, as a society, we handle compulsory issues exclusively by taxation and government spending is not correct. This is particularly true when engaging in a voluntary activity- want to drive, then you need to get a drivers license, and if that means getting a picture taken of your face, then so be it.

The government can regulate business things for businesses. Regulating minimum wages makes sense because paying wages is an integral function of employment. Providing contraception isn't.

That seems like argument from assertion. Providing healthcare is now an integral function of employment, per the US Congress, regardless of whether you regard it as 'making sense'. It is a new law, but all laws were new laws at one time.

[thompson]

"US Code are that, in the absence of anything saying otherwise, the word "person" is intended to refer to corporations of all sorts as well."

First, I'd emphasize that the Dictionary Act is an act of congress, as is the RFRA, and you can lobby your congresscritters to change those laws.

I wouldn't, of course, because I like them. But revising the RFRA to concern natural humans only isn't as hard as revising the constitution, say.

"So, IMVHO, the law is on the side of the Greens."

I'd keep reading. I'm inclined to agree with the statement, but the non-majority opinions had some good points against as well. Or maybe you have, and not found encouragement in them.

[Carleton Wu]

They shouldn't be required to provide insurance that covers any particular thing. Or required to provide insurance all. And they shouldn't be getting any kind of tax break at all.

Im not really sure where to do with a bunch of "shoulds". One of the least useful conversations I get into repeatedly is with libertarians who assert their absolute right to private property etc and think that this is the starting point for a debate or discussion.
All I can think to say is "should too!"
But no, that's beneath even me.

[thompson]

Carleton:

"I don't like government making those kind of choices. But I *particularly* don't like judges making those kind of choices. "

Yeah. There really are no great answers to this. Allowing reasonable accommodation for sincere belief REQUIRES some measure of sincere belief. And that's not an easy thing to judge. Either in law or in court.

I don't have an adverse feeling regarding judges making that decision in the context of legislation like the RFRA. Congress put the guidelines in place, but someone has to assess them. I don't think congress can put every possible situation in the law and how to handle it.

Would an executive agency be better than a judge, in your mind? Department of Determining Sincerity or something like that?

I think we need a new executive department like we need a hole in the head...and I don't view the religious objector issue as a huge problem for our society at the moment...so I'm ok with judges getting the job. Even if they suck at it, I don't really see it crippling our society.

I'm just spitballing...who gets to decide sincerity in your ideal system? Do you think congress can actually make the law with enough granularity to accomplish that? If not, who would you propose?

[Carleton Wu]

I'm just spitballing...who gets to decide sincerity in your ideal system?

Without giving it a lot of thought:
1)Judges should be free to mandate reasonable accommodation within the law- as you say, Congress can't be expected to consider every edge case. This is without considering whether any individual is sincerely religious- assume that they are.
2)Any religious exception of type #1 should be available to anyone who requests it; I should not have to prove to a judge that my conversion to Islam is sincere before getting halal food in prison.
3)If a judge can't create a reasonable accommodation without short-circuiting the intent of the law, then the law stands (ie the legislature is presumed to have found a compelling state interest in any Constitutional law that they pass).
4)*Unless* the judge infers an unreasonable bias for or against a particular belief.

Id do away with church-based tax breaks too (they can have whatever breaks are currently available to secular nonprofits), and in general laws that support a particular religious viewpoint (eg blue laws).

Is that workable? I dunno. It'd require some changes to the laws as well as the courts.

Also, the Amish strike again, this time from behind bars.

[wj]

But what we actually do is provide for pacifists to do non-combat service.

Or, go to jail. Which not a few folks have done, in order to honor their conscience.

One other interesting point: we do actually make decisions as to whether someone claiming contientious objection is "sincere." And if they aren't, they can be drafted and end up in a combat unit. How do we decide that? Your local Draft Board has a process for making that determination. (Want details? Your local board probably has openings -- most do. If you volunteer, you can get familiar with the whole thing. http://www.sss.gov/fslocal.htm )

So it isn't just abortion or contraception which gets this kind of judgemental decision made. And we've been doing it for a long time.

[sapient]

This is so silly. No one is requiring anyone to use birth control. The "conscience" that needs to be protected is that of the person who's making the choice whether or not to engage in the act of using birth control. There is absolutely zero difference between providing insurance benefits and providing salary. None.