Book Launch: Law, Religion, and Health in the United States

Book Launch: Law, Religion, and Health in the United States
September 27, 2017 12:00 PM
Wasserstein Hall, Milstein West A (2019)
Harvard Law School, 1585 Massachusetts Ave., Cambridge, MA

In July 2017, Cambridge University Press will publish Law, Religion, and Health in the United States, co-edited by outgoing Petrie-Flom Center Executive Director Holly Fernandez Lynch, Faculty Director I. Glenn Cohen, and Elizabeth Sepper, Professor of Law at Washington University School of Law. This edited volume stems from the Center’s 2015 annual conference, which brought together leading experts to identify the various ways in which law intersects with religion and health care in the United States, examine the role of law in creating or mediating conflict between religion and health care, and explore potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation.

About the book: While the law can create conflict between religion and health, it can also facilitate religious accommodation and protection of conscience. Finding this balance is critical to addressing the most pressing questions at the intersection of law, religion, and health in the United States: should physicians be required to disclose their religious beliefs to patients? How should we think about institutional conscience in the health care setting? How should health care providers deal with families with religious objections to withdrawing treatment? In this timely book, experts from a variety of perspectives and disciplines offer insight on these and other pressing questions, describing what the public discourse gets right and wrong, how policymakers might respond, and what potential conflicts may arise in the future. It should be read by academics, policymakers, and anyone else – patient or physician, secular or devout – interested in how US law interacts with health care and religion.

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LIVE ONLINE TODAY @ NOON: President-Elect Trump’s Health Policy Agenda: Priorities, Strategies, and Predictions

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Webinar: President-Elect Trump’s Health Policy Agenda: Priorities, Strategies, and Predictions

Monday, December 19, 2016, 12:00 – 1:00pm

WATCH LIVE ONLINE!: http://petrieflom.law.harvard.edu/events/details/president-elect-trumps-health-policy-agenda

Submit your questions to the panelists via Twitter @PetrieFlom.

Please join the Petrie-Flom Center for a live webinar to address what health care reform may look like under the new administration. Expert panelists will address the future of the Affordable Care Act under a “repeal and replace” strategy, alternative approaches to insurance coverage and access to care, the problem of high drug prices, innovation policy, support for scientific research, and other topics. The panel will discuss opportunities and obstacles relevant to President-elect Trump’s proposals, as well as hopes and concerns for health policy over the next four years. Webinar participants will have the opportunity to submit questions to the panelists for discussion.

Panelists

  • Joseph R. Antos, Wilson H. Taylor Scholar in Health Care and Retirement Policy, American Enterprise Institute
  • Lanhee J. Chen, David and Diane Steffy Research Fellow, Hoover Institution; Director of Domestic Policy Studies and Lecturer, Public Policy Program; affiliate, Freeman Spogli Institute for International Studies, Stanford University
  • Douglas Holtz-Eakin, President, American Action Forum
  • Moderator:Gregory Curfman, Editor-in-Chief, Harvard Health Publications

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Vaccinate Your Children (Says a Federal Judge)

Flickr Creative Commons-Dan Hatton
Flickr Creative Commons-Dan Hatton

By Gregory M. Lipper

After nearly four years fighting about whether and when employers may exclude contraceptive coverage from employee health plans (and even block others from providing that coverage), it’s perhaps refreshing to see less controversial cases. And few healthcare-exemption cases are less controversial than those brought by parents who object to vaccinating their children. Although the challenged laws are objectively more intrusive than the contraceptive regulations—vaccination laws require parents to get the offending treatment injected into their children—courts thus far have correctly dismissed these challenges with little fanfare.

This dynamic surfaced again in a recent federal trial-court decision in California, in which the court dismissed a federal and state constitutional challenge to California legislation repealing the “personal belief exemption” to requirements that those entering schools and child-care facilities get vaccinated against diseases—including diphtheria, measles, mumps, rubella, and other dreadful ailments. The court acknowledged that eliminating the personal-belief exemption “raises principled and spirited religious and conscientious objections by genuinely caring parents and concerned citizens,” but stated that “the wisdom of the Legislature’s decision is not for this Court to decide.” Because the legislature decided to scrap the personal-belief exemption, California now exempts only those children (1) with actual medical reasons for avoiding the vaccination, (2) who are home schooled, or (3) who qualify for an Individualized Education Program under federal disabilty law. That’s a much more limited and manageable group of exemptees.

Although quite a relief for those seeking to minimize gratuitous suffering from preventable diseases, the court’s decision implicates several knotty legal issues and is worth exploring further.

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pregnant belly with "surrogacy" written on it

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.”

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“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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