FEDERAL JUDGE RICHARD LEON DROPS THE BALL

In a significant escalation of the birth control wars, a federal judge held on Monday that employers who object to contraception can refuse to include birth control coverage in their employees’ health plan — even if their objection to birth control has nothing whatsoever to do with religion.

Judge Richard Leon is a George W. Bush appointee with a history of handing down conservative opinions. His opinion in March for Life v. Burwell is no exception. In it, Leon holds that the March for Life Education and Defense Fund, an anti-abortion group which claims to be non-religious, may refuse to comply with federal rules requiring employers to include certain forms of contraception, even though their objections to birth control are entirely secular.

Leon’s reasoning on this issue is, frankly, hard to follow. It is even more difficult to summarize in writing. In essence, however, Leon appears to object to the government’s decision to exempt churches and other inherently religious organizations from the birth control rules without also extending this exemption to secular employers because such a rule discriminates against secular employers.

The problem with this argument is that the Supreme Court has explicitly held that when the government “acts with the proper purpose of lifting a regulation that burdens the exercise of religion” there is “no reason to require that the exemption come packaged with benefits to secular entities.”

In an apparent attempt to work around this Supreme Court decision, Leon digs up two obscure sentences published by the federal government which note that “houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers” to employ people who share the same view. From this statement, however, Leon deduces that the government’s real purpose in exempting certain religious employers from the birth control rules was actually to protect “a moral philosophy about the sanctity of life.” It is an extraordinary leap of logic that, even if it did reach a sound conclusion, does not obviously lead to Leon’s ultimate legal conclusion that a religious exemption must come packaged with benefits to secular entities. And yet Leon reaches this conclusion, regardless.

A separate section of Leon’s opinion sides with two March for Life employees who claim that they should be allowed to purchase an employer-provided plan that does not offer birth control coverage because they have religious objection to “participating in a health insurance plan that covers” certain forms of contraception. In a post-Hobby Lobby world, this is not a frivolous claim — although it is far from a slam dunk. In any event, the appropriate remedy if these two plaintiffs ultimately prevail is to grant them — and only them — the right to purchase a plan that does not otherwise comply with federal law.

Leon’s first conclusion that secular employers may exempt themselves from a federal rule they wish not to follow, however, goes far beyond what the Supreme Court said in Hobby Lobby.

[cross-posted from thinkprogress]

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STAFF WRITER

I CALL YOUR BLUFF

For most of the last year, the Supreme Court has forced the Obama Administration into an elaborate dance, where the Court hands down orders casting doubt upon the administration’s efforts to ensure that all women have access to affordable birth control — while simultaneously implying that everything would be fine if the administration just designed their birth control policy a different way. Friday, the administration is expected to announce a new policy that appears designed to end this dance and force the justices to rule definitively on whether employers with religious objections to birth control effectively have the power to restrict their employees’ access to birth control coverage, no matter how the government structures its regulations.

Up until now, the administration’s rules treated non-profit and for-profit employers as separate entities. Religious non-profits who object to birth control could exempt themselves from the requirement to offer contraceptive care to their employees by filling out a specific form that informs the government of their objection, and sending a copy of the form to their insurance provider or administrator. In most cases, once the non-profit employer submitted this form, their insurer would then contract separately with their workers to ensure that those workers had contraceptive coverage. These non-profit rules spawned one round of litigation brought by religious non-profit organizations which claim that even being required to fill out a short form violates their religious liberty.

Meanwhile, for-profit employees were required to comply with their legal obligations to their employees. Prior to the Supreme Court’s June decision in Burwell v. Hobby Lobby, which significantly reworked the balance of power between employers and employees, the law was clear that for-profit businesses could not invoke their owners’ religious beliefs to exempt themselves from their legal obligations to their workers. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court held in its 1982 decision in United States v. Lee, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Hobby Lobby, of course, was the culmination of a second round of litigation brought by for-profit employers whose owners have religious objections to birth control. And it effectively eliminated the protections Lee extended to workers, at least with respect to federal law.

In both the non-profit cases and the for-profit cases, the Supreme Court has issued decisions suggesting that it would totally be fine for the Obama Administration to guarantee that most women in the workplace have contraceptive health coverage, if only they would do a better job of designing their regulations. Last January, for example, the Court temporarily exempted an order of nuns from the requirement that they fill out the form they are required to fill out in order to obtain an exemption from the birth control rules. Yet the Court’s order in that case also required the nuns to “inform the Secretary of Health and Human Services in writing” of their intention to seek the exemption if they wanted to invoke it. The implication was the form itself was somehow problematic, and everything would be fine if the Obama Administration had just required non-profit employers to use a different method to inform the government that they are invoking the exemption.

Meanwhile, the Hobby Lobby opinion granted many for-profit employers a religious exemption from the birth control rules, but it also strongly implied that everything would be fine if the Obama Administration had only applied the same regime it applies to non-profit employers to for-profit employers as well. That is, all would be good if, instead of requiring Hobby Lobby to offer birth control coverage directly, Hobby Lobby should instead fill out a form and send a copy of it to their insurer, and then that insurer would provide coverage to Hobby Lobby’s workers. The implication this time around was that the administration’s fill-out-the-form solution struck an appropriate balance between protecting women in the workplace and also shielding religious liberty, and that it would be upheld by the Court.

Only a few days later, however, the Court handed down another order suggesting that the fill-out-a-form solution wasn’t actually a solution at all. In Wheaton College v. Burwell, the justices granted a Christian college a temporary exemption from the requirement than they fill out the form — once again holding that the college could simply “inform[] the Secretary of Health and Human Services in writing” that they wish to invoke the exemption. In dissent, Justice Sotomayor accused the Court of shifting the goal posts just days after Hobby Lobby. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”

So the Obama Administration could be forgiven if it believes that it has been cast in the role of Charlie Brown, and that the Supreme Court has assigned itself the role of Lucy while she is holding a football. Nevertheless, the new regulations the administration is expected to announce Friday appear to rest on the assumption that the Court can be taken at its word, and that if the administration provides virtually every accommodation to religious objectors that the justices have thus-far demanded, then its newest round of regulations will be upheld.

According to the Wall Street Journal, the new regulations provide that “institutions would have to tell the federal government which company administers their health-insurance plan, and the government would then contact that administrator to ask it to arrange contraception coverage for the institution’s employees. The administrator would likely turn to a traditional insurance company to fund the benefits, and the insurance company would later be reimbursed by the federal government.”

In other words, the new regulations honor Hobby Lobby‘s suggestion that the justices will tolerate a program that places the obligation to cover contraception in the hands of the insurer, not the employer. And they honor Wheaton College‘s suggestion that, even if a particular form is objectionable, employers can still be required to inform the government that they are seeking an exemption from the law using some other method.

The one remaining question is whether the Court will tolerate the new rules’ requirement that religious employers “tell the federal government which company administers their health-insurance plan,” a requirement that goes beyond the obligations the Court imposed in its Wheaton College order. The employers who have raised the staunchest objections to birth control have often claimed that they cannot take any action that will set in motion a chain of events that leads to someone receiving contraception, as doing so would make them “complicit” in the act of providing birth control. If the justices are determined honor even this idiosyncratic objection, then it is unclear that the administration could provide any accommodation that would survive Supreme Court review.

Such a holding, it should be noted, would gut a key limit on federal religious liberty law. Under the Religious Freedom Restoration Act, which was the statute the Court relied upon in Hobby Lobby, the federal government may not “substantially burden a person’s exercise of religion” except in certain circumstances. But if requiring someone to write a two sentence letter naming an insurance company can be a “substantial burden,” then anything can be a substantial burden. It’s difficult to imagine a less burdensome act that could be imposed upon someone then requiring them to toss off a letter they could probably draft in 30 seconds.

In any event, however, the Obama Administration’s new rules will likely put an end to the Supreme Court’s ability to move the goalposts every time someone raises a new objection to the administration’s policy. The administration has now crafted its rules to comply almost to the letter with the requirements suggested by previous Supreme Court opinions. Now, the rest of the country will have to wait to find out whether Hobby Lobby actually permits this latest set of rules — or whether the language in that decision leading the Obama Administration in this direction will simply end with Lucy pulling away the football one more time.

cross-posted from thinkprogress

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THE SATANIC TEMPLE DEMANDS EXEMPTION FROM ABORTION CITING HOBBY LOBBY SUPREME COURT FINDING

THE SATANIC TEMPLE

The Supreme Court’s recent Hobby Lobby decision, which allowed some for-profit companies to claim a religious exemption to Obamacare’s contraception mandate, has sparked a heated debate over the definition of religious liberty and its role in modern society. At this point, even a Satantic cult has decided to weigh in.

The Satanic Temple — a faith community that describes itself as facilitating “the communication and mobilization of politically aware Satanists, secularists, and advocates for individual liberty” — has launched a new campaign seeking a religious exemption to certain anti-abortion laws that attempt to dissuade women from ending a pregnancy. The group says they have deeply held beliefs about bodily autonomy and scientific accuracy, and those beliefs are violated by state-level “informed consent” laws that rely on misleading information about abortion risks.

Now that the Supreme Court has ruled in favor of Hobby Lobby, the Satanists point out, it strengthens their own quest to opt out of laws related to women’s health care that go against their religious liberty. “Because of the respect the Court has given to religious beliefs, and the fact that our beliefs are based on best available knowledge, we expect that our belief in the illegitimacy of state mandated ‘informational’ material is enough to exempt us, and those who hold our beliefs, from having to receive them,” a spokesperson for the organization said in a statement.

The Satanic Temple, sometimes referred to as “the nicest Satanic cult in the world,” falls somewhere between satire, performance art, and activism. The group says its central mission is to “encourage benevolence and empathy among all people, reject tyrannical authority, advocate practical common sense and justice, and be directed by the human conscience to undertake noble pursuits guided by the individual will.” It has a set of seven tenets that closely track with humanism. Typically, wherever issues of church and state are overlapping, the Satanic Temple isn't far behind.

Members of the Satanic Temple first made national headlines when they rallied in support of Florida Gov. Rick Scott for approving a bill that allows prayer in public schools, saying they’re glad the new policy will allow children to pray to Satan.

Since then, they've also held “a formal ceremony celebrating same-sex unions” on the grave of the mother of the leader of the Westboro Baptist Church, declaring that she has posthumously become a lesbian, and commissioned a seven-foot-tall Satanic statue near a monument to the Ten Commandments at the Oklahoma State Capitol.

And now, the Satanic Temple is turning its attention to “campaigns to assert our religious protection for women with health needs that are being complicated by unreasonable laws,” focusing on the abortion-related legislation that goes against science.

State-level abortion restrictions that aren't actually based in medicine have swept the nation. “Informed consent” laws, which typically require women to receive biased counseling before being allowed to proceed with an abortion procedure, are now in place in 35 states. Many of those laws require doctors to tell their patients misleading information about abortion’s potential link to mental health issues and breast cancer. Some of them put words directly in doctors’ mouths, forcing them to refer to the fetus as an “whole, separate, unique, living human being.”

Members of the Temple of Satan are encouraging all women who share their belief in medical accuracy to seek their own exemption from these laws, even if they don’t personally identify as Satanists. They've drawn up a sample letter to help women talk to their doctors about the issue, as well as created “Right to Accurate Medical Information” t-shirts for purchase.

Satanists aren't the only activists fighting back against the junk science used to justify anti-abortion laws.
The secular humanist group Center for Inquiry recently launched a “Keep Health Care Safe and Secular”
campaign to encourage more Americans to fight back against laws limiting women’s access to health services. Similarly, NARAL Pro-Choice America sometimes uses the slogan “Politicians Make Crappy Doctors.”

O' the can O'worms this ruling has unearthed. 

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Editor-In-Chief

Roger West

HANDING OUT CONDOMS AT HOBBY LOBBY?

A group of clergy handed out condoms to customers in front of an Illinois Hobby Lobby store on Wednesday, staging a creative, faith-based protest against the U.S. Supreme Court’s decision to grant the craft store giant religious exemptions from the Affordable Care Act’s contraception mandate.

The action, which was reportedly initiated by a local United Church of Christ (UCC) minister in Aurora, Illinois, included representatives from the UCC, the Unitarian Universalist Association (UUA), and Planned Parenthood. Hobby Lobby’s health care plan covers male condoms and various other forms of contraception — and its case to the Supreme Court had to do with other kinds of measures to prevent pregnancy — but the religious leaders said the protest was ultimately about exposing the multiplicity of religious beliefs around contraception.

“I’m just hoping that (people who see the demonstration) realize that this opinion (of Hobby Lobby’s owners) is not the opinion of religious people as a broad spectrum, but that religious people have many different opinions,” Rev. Emmy Lou Belcher, a UUA minister who was at the protest, told the Daily Herald.

Religious leaders also said they hoped the move would draw attention to the danger of allowing employers to privilege their own religious beliefs over those of their employees.

“You can make the religious freedom argument, you can make the argument about contraception, but ultimately, for me, this is about power,” said Rev. Mark Winters, a UCC minister. “Jesus had a lot of issue with powerful people using power over the powerless.”

The action in Aurora is part of a growing number of religious Americans who are publicly expressing their frustration with the Supreme Court’s decision. Several faith leaders have spoken out against Hobby Lobby’s position even before the decision was announced, and Serene Jones, President of Union Theological Seminary in New York City, was quick to blast the ruling, saying, “I am horrified by the thought that the owners of Hobby Lobby as Christians think their corporation has a soul, and I’m even more appalled that the Supreme Court agrees.”

Just hours after the court issued its ruling on Monday, a Baptist minister held a prayer vigil outside Hobby Lobby’s flagship store in Edmond, Oklahoma, to decry the decision. According to a statement released by Faithful America, a progressive Christian group that helped organize the vigil, the crowd of religious faithful gathered to pray for “Hobby Lobby employees who will now have difficulty accessing health care they need to responsibly plan for their families’ futures.”

“There are many of us Baptists, as well as other Christians, who believe that religious liberty rights are something inviolable for individuals and not for corporations,” Dr. Bruce Powell, the leader of the protest, told News Channel 4 in Oklahoma City. “The right of religious liberty is a fundamental human right. Corporations are legal constructs. They are not human beings.”

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STAFF WRITER

THE REALITY OF THE HOBBY LOBBY FIASCO

THE REALITY OF THE HOBBY LOBBY DECISION

A funny thing happened on the way to the forum; Hobby Lobby owner David Green and his "Christian" based company supplied their female employees every contraceptive available, [which included the now banned ones] in their health plan - that is until Obamacare was passed. Then all of the sudden their "Christian Faith" and "Moral Compass" hit them, and then...........

........The U.S. Supreme Court's decision Monday in Burwell v. Hobby Lobby Store, Inc. was stunning both in its sexist nature and in ignoring long-standing precedent preventing corporations from imposing their religious beliefs and values on employees.

On one side of the decision were the court's five conservative justices - all men appointed by Republican presidents - saying it was OK for Hobby Lobby and another company, Conestoga Wood Specialties, to ignore the federal health law requirement that the insurance policies they provide include free contraception coverage for women. Whether women take advantage of the coverage is, of course, up to them and their doctors.

On the other side of the 5-4 ruling were the three women on the court, joined by Justice Stephen Breyer - collectively representing the liberal wing - who decry in their dissenting opinion the majority's ruling that the religious positions of a few corporate leaders trump the personal freedoms of their female employees.

The two corporations challenged the contraception mandate on the grounds it includes methods that the corporate leaders consider tantamount to abortion because they can prevent embryos from implanting in the womb. Forcing them to include the methods in coverage would make them complicit in the practice, they argued.

The court's decision hinges on the Religious Freedom Restoration Act (RFRA) of 1994 that prevents the government from "taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest."

In other words, it is a bad and unclear decision based on a bad and unclear law.

Justice Samuel A. Alito Jr., seemingly recognizing the thin constitutional ice on which he was treading, sought to narrow the scope of the decision.

"The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family," Justice Alito writes, arguing that the ruling should only be viewed in that narrow context.

In her dissent, Justice Ruth Bader Ginsburg looks through that transparent curtain.

"Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private," she writes.

Given the majority's expansive interpretation of the RFRA, why couldn't a Catholic corporate ownership deny any form of birth control coverage based on the church's teaching? Some religious sects oppose vaccines and transfusions, others medications derived from certain animals. Could owners with these beliefs refuse to provide insurance coverage for such treatments, Justice Ginsburg asks.

For that matter, she continues, the conservative majority's reasoning could extend outside of health policy, throwing out laws that prevent corporations from using their own religious standards to discriminate against unmarried people living together, or homosexuals, or those in inter-religious or inter-racial marriages.

Best case, the decision is so narrow that it is only OK for a closely held corporation to impose its beliefs on employees when the topic is the reproductive rights of women. Either way -broad or narrow - the ruling is a terrible one.

In 1982, the high court ruled on the case of an Amish farmer who believed that withholding Social Security taxes from his employees or paying the employer's share of such taxes would violate his faith. The court said he could not use a religious rights' argument to deny his workers participation in Social Security.

"When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed … on others in that activity." An employer, that court found, cannot "impose (its) religious faith on the employees."

That is what Hobby Lobby is doing to its female employees. Maybe just maybe this court should have followed its own precedent.

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Editor-In-Chief

Roger West

"WOMENS USE OF BIRTH CONTROL IS LARGELY FOR RECREATIONAL BEHAVIOR"

Sen. Mike Lee (Tea Bagger) agreed on Monday that women use birth control to protect themselves from “recreational behavior,” just hours after the Supreme Court ruled that some companies can refuse to provide health insurance coverage that includes contraceptive services.

During an appearance on Sirius XM’s The Wilkow Majority, host Andrew Wilkow argued that the real question in Burwell v. Hobby Lobby Stores Inc., was about “whether or not a person who runs a business should be forced to provide something that is largely for recreational behavior, if it goes against their religious beliefs.”

Lee, responded by saying “Yea, that’s right, that’s right,” before claiming that “this administration is using the often coercive power of the federal government to force people into their way of being and their way of existing, their way of believing and thinking and acting.”

However, the overwhelming of women report using contraception for economic and medical reasons. Sixty-two million women in the U.S. are currently in their childbearing years and most — 99 percent — use birth control to prevent pregnancies, the National Women’s Law Center finds. Nearly 60 percent have relied on contraception for medical reasons like reducing cramps or menstrual pain, ensuring menstrual regulation, treating acne, and treating endometriosis. And according to a recent study from the Guttmacher Institute, 63 percent of women who use birth control say that they rely on contraception to take better care of themselves and their families.

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Editor-In-Chief

Roger West

JUSTICE GINSBURG BLISTERS FELLOW SUPREME BEINGS OVER HOBBY LOBBY RULING

RADICAL CONSERVATIVE MEN RULE AGAINST WOMEN AT WORK

Justice Ginsburg has some problems with the Hobby Lobby 5-4 decision. Some excerpts from her dissent via Mother Jones:

 "Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community." 

 "Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults." 

 "It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage." 

 "Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude."

You can read the full dissent here. (It starts on page 60.)

In other words, your boss has more of a right to free exercise of his religion than you have because, well, money!

Voting has consequences, screw who is POTUS, they only have 8 years to screw the pooch, their selections of Supreme Beings, can have generational effects, as these folks stay until they rot, which can be decades. 

The damage done today is a major setback for women, let alone ACA.

For-profit companies have religious rights, and those rights trump the rights of women who work for them. ~ Justice Alito

Quoting Col. Nathan R. Jessup in a few good men: "all you did was weaken a country, that's all you did. You put people's lives in danger. Sweet dreams, son.....................

NFTOS
Editor-In-Chief

Roger West

SUPREME SCIENCE DENIERS

Arguments were all going well for the ACA until Justice Kennedy asked the magic question.

Today's Supreme Court arguments about contraception, the ACA and religious liberty began with the ACA in a winning position.

ThinkProgress:

It was clear from the get go that the Court’s liberals understood that their best course involved highlighting the dangerous consequences of a victory for Hobby Lobby. Paul Clement, the de facto Solicitor General of the Republican Party who argued the case on Hobby Lobby’s behalf, barely uttered his first sentence before Justice Sonia Sotomayor cut him off to ask what other medical procedures religious employers could refuse to cover in their employee health plans. Justice Elena Kagan quickly joined the party. If Hobby Lobby can deny birth control coverage, Kagan asked, what about employers who object to vaccinations? Or blood transfusions?

When Clement tried to deflect this list, Kagan came armed with an even bigger what. What of religious employers who object to gender equality, or the minimum wage, or family medical leave, or child labor laws? If the Supreme Court agrees with Hobby Lobby’s brief, which argues that laws burdening a corporation’s purported religious faith must survive the “most demanding test known to constitutional law,” then there would be few laws corporations could not exempt themselves from following.

So far, so good. And then Justice Kennedy dropped the bomb:

Kennedy did something different, he did not weigh in on the question of whether non-abortions can count as abortion — indeed, he seemed to understand the difference between birth control and abortion. Nevertheless, he looked at the government’s requirement to provide birth control coverage and envisioned a future law compelling Hobby Lobby to pay for actual abortions — just as he once gazed upon a requirement to buy health insurance and imagined the government forcing everyone to buy broccoli. In Justice Kennedy’s Courtroom, the government doesn’t have to defend the law it actually passed, it has to defend the worst law Kennedy can imagine them passing — even if that law would never make it through Congress.

Clement pounced on the opening Kennedy gave him the second he took the podium for his rebuttal argument. The government’s position, he claimed, goes straight to abortion and “that cannot be what Congress meant when it passed RFRA.” Kagan’s face grew even more worried.

In order to get through that line of logic, Kennedy would have to deny science and assume that IUDs, as one example, cause abortions. Despite reams of scientific literature to the contrary, it appears that he may be poised to go in that direction. And that will mean that any concerns he might have about employers denying other medical treatments in the name of religious liberty will also fly out of the window, because abortion trumps all else.

What's next? Will taxes be the next "religious liberty" argument? These forced birth advocates worship at the Altar of the Almighty Fetus first, then baptize themselves in fountains of coins. It's enough to make baby Jesus weep.

NFTOS

Editor-In-Chief

Roger West

HOBBY LOBBY

Want your boss or employer muddling in your healthcare? Watch Rachael Maddow on why you may not have a choice, or do you?

Video courtesy of MSNBC

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