July 04, 2014
Intelligent write-up about Hobby Lobby issues...
...by journalist Dan Fisher at Forbes. I talked to him prior to the perplexing injunction on behalf of Wheaton, but he integrated that effectively. And Justice Sotomayor gets it exactly right in the bit he quotes: it really is preposterous on its face that anyone's free exercise of religion is burdened by a bit of paperwork (if only it were so--I might find God!). (The 7th Circuit disposed of the other argument in the Notre Dame case--Justice Sotomayor noted the relevant bit, as does Mr. Fisher.)
June 30, 2014
Shorter Hobby Lobby
Owners of a closely held corporation, like non-profit organizations, can be exempted from the requirement of paying for provision of at least four kinds of post-conception contraceptive drugs/devices as required by the Affordable Care Act if they have a sincere religious belief that life begins at conception, since the government can, in any case, just pay for these drugs/devices directly. Nothing in the decision should be taken to suggest that sincere religious belief in otherwise illegal discrimination, or in the wrongness of blood transfusions or vaccinations, will get similar accomodation.
Even shorter Hobby Lobby: conscientious objections count when they involve post-conception contraception, otherwise probably not.
Long version here.
UPDATE: And now some longer thoughts on Hobby Lobby. I preface this by noting that I think RFRA is a bad law, and Employment Division v. Smith got it basically right, but none of that is at issue. The Court's holding that closely held corporations are "persons" for purposes of RFRA isn't implausible, especially when, as here, the corporate entities were essentially family businesses, in both cases very Christian families who believe "sincerely" (as we are told repeatedly) that life begins at conception. (I do believe that people who hold sincere but pernicious false beliefs, such as that life begins at conception, should be encouraged to abandon those beliefs, but that also isn't at issue in this case!) I also agree with the Court that the costs of non-compliance with the ACA would be very substantial for those challenging the law. I also agree with the Court that the fact that the government has already established a simple procedure for non-profit organizations with religious objections to contraception to opt out (with the insurers bearing the costs, rather than the employees) is pretty overwhelming evidence that there are "less restrictive" alternatives to meeting what the Court concedes is a compelling governmental interest, namely, providing contraception to covered employees without additional cost to the employee. The least plausible part of the majority opinion is p. 36's argument that it is not for the Court to assess whether it is reasonable for the Hahns and the Greens (the family-owners of the corporations) to sincerely believe that paying for insurance that an employee might use to access medical services of which they disapprove; but as Justice Ginsburg points out in dissent (pp. 21-22), it is for the Court to assess whether, as a matter of law, there is actually a substantial burden on their religious beliefs. What if the Hahns and Greens have a sincere religious belief that the ACA burdens their free exercise rights under RFRA? The Court obviously isn't bound by that. The Court need not decide whether it is reasonable to believe that life begins at conception or that the "morning after" pill is akin to murder. But it is most definitely for the Court to decide whether those beliefs are burdened by paying for health insurance that an emplyoee might use to get a "morning after" pill.
Justice Ginsburg has perhaps been going to the opera too often with Justice Scalia, since her dissent begins on a note of rhetorical overkill worthy of Scalia! The majority decision is not broad; indeed, it is remarkably narrow, which was the point of my "shorter Hobby Lobby," above. (I was being a tad facetious, though, in saying it will only reach conscientious objections to post-conception contraceptives--though parts of the opinion read that way!) General Motors won't be challenging any part of RFRA based on this decision; closely held corporations run by Christian Scientists or Jehovah's Witnesses may bring suit, but they are going to lose on the evidence of Justice Alito's opinion. The biggest burden of today's decision falls on insurers, who will now be paying for the contraceptive coverage of a lot more employees than previously. And today's decision strongly suggests that the non-profit orgagnizations challenging the opt-out procedures are going to lose if it gets to the Supreme Court.
All that being said, I would have voted against the Hahns and Greens: I think it would have been better, and equally plausible, to simply hold that corporations are not "persons" for RFRA purposes; and it would have been far more plausible to deny that there was any substantial burden on the religiosu beliefs of the Hahns and Greens by requiring them to pay for health insurance that their employees might use for medical services of which their employers disapprove for religious reasons.
(Jonathan Adler [Case Western] points out that my "shorter Hobby Lobby" elides the fact that the ACA did not require contraception coverage directly, but only that HHS regulations specify covered services, and that it was these regluations that incorporated FDA-approved contraceptive drugs and devices. Had the ACA specifcally mandated contraceptive coverage, this would have opened the door, Prof. Adler suggests, for the government to argue that RFRA does not apply.)
CORRECTION: A health law attorney knowledgeable about these matters writes:
Good post on the Hobby Lobby decision, but one quick correction -- under the federal regs, insurers aren't directly on the hook for providing separate contraceptive coverage. They get "paid" for that coverage through the exchange funding mechanism -- basically, they get to deduct the coverage costs from their exchange fee (i.e., a percentage payment of the premiums for exchange plans, currently set at 3.5%). The exchanges are supposed to be self-sufficient by 2015, and it's my understanding that this isn't anticipated to be a problem. If that's wrong for some unexpected reason, CMS would just tweak the exchange fee.
MORE READING: Predictably there's a huge outpouring of commentary, most of it misleading (even by law professors). But two good assessments are those by Joey Fishkin and Sandy Levinson, both law professors at UT Austin (Levinson a former colleague, Fishkin after my time). Fishkin identifies what this case is really about (despite its very narrow holding) and Levinson comments on the rhetoric of Ginsburg's dissent.
Slate business columnist: now's the time to go to law school
June 27, 2014
An entertaining interview with Judge Posner
Here. An excerpt:
I've changed my views a lot over the years. I'm much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason, published in 1992, which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things. I've become much more concerned with long prison sentences; softer on drugs; more concerned with consumer protection, the environment and economic inequality; less trustful of purely economic analysis—the last partly because of the crash of 2008 and the ensuing economic downturn. That shook some of my faith in economic analysis. And developments in psychology have required qualification of the "rational choice" model of economic behavior. So my views have changed a lot. You don't want a judge who takes a position and feels committed to it because he thinks it's terrible to change one's mind.
June 25, 2014
University of Toronto Faculty of Law Dean Search
June 24, 2014
Student debt is not the problem facing higher ed...
...according to a new report, which will no doubt be ignored by the fact-free crowd in cyberspace!
Writing Prize inflation at Yale Law School
No surprise here, courtesy of my colleague Eric Posner. A Yale resume without several writing prizes should be inherently suspect!
June 23, 2014
Religious exemptions as license for evil, part 143
June 19, 2014
ABA approves splitting the two Penn State law school campuses into separate institutions
The official announcement. If the Dickinson School in Carlyle is not listed as part of Penn State for U.S. News purposes, that will have a deleterious effect on its rankings, due to the notorious halo effects of university names.