Surrogacy Contracts, Abortion Conditions, and Parenting Licenses

By Dov Fox

Everything went fine the last time for Melissa Cook, when the 48-year old mother of four carried a child for a family back in 2013 to supplement her office job salary. This time was different. First were the triplets. She had been impregnated with three embryos, created using eggs from a 20-something donor and sperm from the intended father who paid for everything. Then, it was that the man, Chester Moore, turned out to be a deaf 50-year-old postal worker who lived with his parents. Finally, was that Moore asked Cook to abort one of the fetuses. He said that he had run out of money to support a third child and worried the high-risk multiple pregnancy would endanger the health of any resulting children.

Cook, who is pro-life, refused. A battle over parental rights of the triplets, all boys, began even before they were born (prematurely, at 28 weeks). Moore argued that his surrogacy contract with Cook, explicitly enforceable under California law, made clear that he was the sole legal parent. Cook sued for custody, notwithstanding her prior agreement that any children resulting from the pregnancy would be his to raise. She argued that the statute, by authorizing private contracts for gestation of a human being, reduces children to “commodities” for sale, and a surrogate like her to a “breeding animal or incubator.” Read More

Religion or Women?

In response to the religious objections levied against the contraceptives coverage mandate at issue in Hobby Lobby, Zubik, and gobs of other cases, many have argued that this was really a matter of subjugating women – not about religion per se.  Well, now we have a test case: Vermont’s governor just signed into law a requirement that public and private health insurance cover vasectomies without copays and deductibles. There won’t be the same arguments about abortifacients here, but many religious employers should object just the same, if they’re being consistent. Now let’s watch and see…

SCOTUS and More Surprises on Zubik

After the 2014 SCOTUS decision in Hobby Lobby, in which a closely-held for-profit employer won the argument that the federal Religious Freedom Restoration Act protected it against enforcement of the government’s contraceptives coverage mandate, all eyes have been on what SCOTUS would do in response to a challenge to the very same accommodation it toyed with as a less restrictive alternative in that case.  The Court agreed to hear a consolidated set of challenges to the accommodation brought by several religious non-profit employers who seek outright exemption from the mandate (under the case name Zubik et al.) – but then Justice Scalia passed away, leaving the Court with the unpalatable prospect of a 4-4 decision.

SCOTUS has pulled a few tricks out of its hat to avoid that possibility.  First, it surprised us by seeking supplemental briefs on a possible compromise solution, which would ostensibly allow women to access contraceptives (as the government desires) while not burdening the religious employers (as they desire).  The parties basically responded, as politely as would be expected, that some compromise was indeed possible – but not on terms the other could or would actually accept.  Nonetheless, today, SCOTUS surprised us again – seeing enough glimmer of a possible compromise to decline to decide the cases on the merits, instead returning them to the lower courts to work something out.

So what does that mean?  In my view, count it as a win for the government.  Eight out of nine circuit courts ruled in the government’s favor below, holding that the accommodation it had already offered did not substantially burden employers’ religious beliefs – which means that RFRA’s further protection, demanding a compelling government interest satisfied in the least restrictive way, does not even get triggered. These courts have no reason to change that determination now.  Even if there is a compromise that would be less burdensome on religious employers (which I don’t think there is), such a compromise is not required under RFRA unless there is a substantial burden.  And SCOTUS hasn’t said there is.

What we have here is, ironically, precisely the same result we’d have had if SCOTUS had issued a 4-4 decision.  The lower court opinions will almost certainly stand, and we’ll likely still have a bit of a circuit split. So now, we wait on a new president.  The Donald would presumably destroy the ACA/mandate entirely, whereas Hillary would hopefully be able to deliver a ninth justice that will recognize RFRA’s reasonable limits.  Religious freedom is critically important, but so too is accepting the government’s dramatic efforts to be accommodating, short of letting every religious believer be an island unto himself.

Little Sisters’ Case: A Forgotten Voice

By: Matthew Ryan

I love the Little Sisters of the Poor. As an undergraduate student, I fulfilled my public health program’s service requirements by volunteering at their nursing home in St. Louis. Each week, I would drive from my pristine, Jesuit college campus to the neglected part of the city. The sisters’ home was on an abandoned block without a street sign. The sister’s “neighbors” were a few burnt-out homes and mostly over-grown lots.

Inside, the nuns housed and loved the most vulnerable. I volunteered on the floor with residents suffering from dementia. I remember one nun in particular, Sister Isabella, who had given her entire life to caring for our elderly poor. Every hour or so, Sister Isabella would greet one resident who could no longer speak audibly nor open her eyes. Sister Isabella would hug her, sing to her, and often take her outside to feel the sunshine. This, in addition, to cleaning up after the residents, leading prayer before meals, and ensuring each resident got out of his or her bed each day.

Sister Isabella—and the Little Sisters in general—have remained imprinted in my memory. They have been a tremendous example to follow. When the rest of society, many Catholic churches included, had given up on the “least of our brothers and sisters,” the Little Sisters quietly went about doing the work of God. My admiration for them has made the recent Supreme Court case—and the battle over the Affordable Care Act’s contraceptive coverage—all the more difficult. Read More

Mind the Coverage Gap (A Look at Healthcare Sharing Ministries)

Painting of Christ healing the sick
Flickr/Creative Commons—Ted

By Gregory M. Lipper

The Wall Street Journal published a story earlier this week about an increase in the number of Americans enrolling in healthcare sharing ministries: faith-based alternatives to standard health insurance. According to the Journal, the number of participants in these ministries has grown from under 200,000, before the Affordable Care Act was enacted, to approximately 500,000 today. Under 26 U.S.C. § 5000A(d)(2)(B), participants in these ministries are exempt from the Act’s individual mandate, which requires most Americans to either obtain qualifying health insurance coverage or pay a tax.

As the Journal article makes clear, however, participants in healthcare ministries lack many of the protections otherwise provided to patients by the Affordable Care Act. For example,

  • Ministries often don’t cover preexisting conditions;
  • Ministries often don’t cover preventive care; and
  • Ministries often don’t cover contraception, maternity care, or mental-health care.

If and when coverage disputes arise, moreover, “[m]inistries generally don’t allow members to sue and require disagreements to be settled by arbitration and mediation.”

Read More

“Crisis Pregnancy Center Fighting for Right to Create More Crisis Pregnancies”

IUD in hand
Flickr/Creative Commons—+mara

By Gregory M. Lipper

That’s how Tara Murtha describes the lawsuit brought by Real Alternatives and its three (male) employees seeking to enjoin application of the Affordable Care Act’s contraceptive-coverage regulations. This lawsuit is different than the ones currently before the Supreme Court: Real Alternatives is not a religious organization, and its employees argue that the mere availability of contraceptive coverage in their own plans violates their rights under RFRA—even though nobody is making them use that coverage.

The plaintiffs are represented by Alliance Defending Freedom, a Religious Right legal organization that has also represented many of the for-profit corporations and nonprofit religious organizations bringing free-exercise challenges to the coverage regulations and accommodation. Unlike most of ADF’s other clients in these cases, Real Alternatives acknowledges that its opposition to the coverage regulations arises purely from its opposition to the use of birth control; there is no claimed religious basis for this opposition.

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Is It Immoral for Me to Dictate an Accelerated Death for My Future Demented Self?

by Norman L. Cantor

I am obsessed with avoiding severe dementia. As a person who has always valued intellectual function, the prospect of lingering in a dysfunctional cognitive state is distasteful — an intolerable indignity. For me, such mental debilitation soils the remembrances to be left with my survivors and undermines the life narrative as a vibrant, thinking, and articulate figure that I assiduously cultivated. (Burdening others is also a distasteful prospect, but it is the vision of intolerable indignity that drives my planning of how to respond to a diagnosis of progressive dementia such as Alzheimers).

My initial plan was to engineer my own demise while still competent to do so. My sketch of methodologies and my preferred course (stopping eating and drinking) appear at: http://blogs.law.harvard.edu/billofhealth/2015/04/16/my-plan-to-avoid-the-ravages-of-extreme-dementia/. The obvious hazard in that plan is cutting short a still vibrant and satisfactory existence.

An alternative strategy would be to allow myself to decline into incompetency, but beforehand to dictate, in an advance directive, rejection of future life-sustaining medical interventions. This strategy would probably work as applied to serious maladies such as kidney disease, lethal cancer, or congestive heart failure. The disturbing issue then becomes timing. The onset of such serious maladies is fortuitous and years of lingering in dementia might precede my demise.

A further alternative would be to seek to accelerate my post-competence demise by declining not only major medical interventions such as mechanical respirators or dialysis, but also more simplistic items like antibiotics, antiarrhythmics, and artificial nutrition and hydration. My envisioned scenario is that infection would occur early (via urinary tract, skin, or pneumonia) and that this condition, left untreated, would precipitate my death. (My advance instructions would allow palliative but not curative measures.)

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The ACA’s Nondiscrimination Rule: Hobby Lobby 2.0?

By Elizabeth Sepper

Should healthcare providers, researchers, and insurers be able to engage in sex discrimination for religious reasons? HHS asked the public to weigh in on this question with regard to the ACA’s nondiscrimination provision.

The answer is no for three important reasons. First, the statute doesn’t allow additional exemptions. Not only is the text clear, but Congress also considered and rejected broader religious exemptions. Second, authorizing sex discrimination for religious reasons is bad health policy with damaging effects for women and LGBT people. Third (as I argued in separate comments with a group of law and religion scholars), granting religious exemptions here runs into constitutional limits set by the Establishment Clause.

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A Circuit Split on Contraceptives Coverage

Perhaps foreshadowed by the dissent in the 10th Circuit that I wrote about here, the 8th Circuit has now officially launched a circuit split regarding the legal validity of the accommodation that allows modified compliance/objection to the contraceptives coverage mandate.  Unlike the seven other circuits to have considered the question since Hobby Lobby, the 8th Circuit yesterday issued opinions upholding preliminary injunctions in two cases (here and here), thereby preventing the mandate+accommodation from being enforced against the objecting non-profits.

First, the 8th Circuit determined that the accommodation still substantially burdens objectors’ religious beliefs because it imposes significant financial penalties if they refuse to comply with a requirement that they view as violative of those religious beliefs. As I explained previously, I do think the court was right to focus on the monetary consequences of objection, rather than assuming that merely filing the required paperwork for an accommodation does not or cannot actually make objectors complicit in the way they claim it does.

Like SCOTUS in Hobby Lobby, the 8th Circuit then went on to assume that the contraceptives coverage mandate advances a compelling government interest, which is the next step in the analysis under the Religious Freedom Restoration Act once the substantial burden test is met.  So far, so good.  But that’s the end of my agreement.

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I Concur with the Dissent (or, More on Little Sisters)

On September 3, the 10th Circuit declined to rehear en banc several challenges to the contraceptives coverage mandate filed by non-profit organizations, including Little Sisters of the Poor. As SCOTUSBlog explains, these organizations had not themselves asked for en banc review, having already moved on to SCOTUS, but the judges have the option of calling for a vote themselves, which one or more of them must have done.  The vote came down 7-5 in favor of refusal, with the dissenting judges (i.e., those who wanted en banc review) issuing an explanation of their position.  On this issue, I concur with the dissent.  But I still don’t think the objecting non-profits should be off the hook.

When it comes to the contraceptives coverage mandate, non-profits, and now certain for-profits, are accommodated such that they may be relieved of the responsibility to contract, arrange, pay, or refer for contraceptives coverage if they notify the government or their health insurer of their objection to doing so, such that their insurer (or third party administrator of self-insured plans) can provide free contraceptives to their employees, at no cost to and without the involvement of the employer (all further explained here by Greg Lipper).  However, many organizations continue to argue that the accommodation fails to relieve them of complicity in providing contraceptives against their religious beliefs.  They want flat out exemption from the mandate. Read More