Morality, Maturity, and Abortion Access in the US

by Clíodhna Ní Chéileachair

In the complex web of restrictions on abortion access, parental consent laws and judicial bypass mechanisms play a small, but hugely significant part. States are entitled to enact parental consent and notification laws in relation to abortion care for minors, as long as they allow minors to ‘bypass’ this requirement judicially, an attempt to account for the myriad circumstances in which it will be impossible, difficult or dangerous for teens to tell their parents about their pregnancy and their wish to end it. Finding different justifications in different contexts, some laws appeal to the perceived immaturity of the individual in arriving at a decision without adult intervention; other legal schemes emphasize the critical importance of respecting the family unit, and by extension, the ability of parents to determine the medical treatment their child will receive. The exact stats, state by state, are available here.

The patchwork regime which governs the US rules on abortion access, administered by local courts presiding over the individual applications of pregnant teenagers, is a highly dysfunctional one, where standards of judgment can be entirely capricious. Judges are, after all, not medical professionals, nor are they therapists, health experts or developmental psychologists. The standard criteria pronounced upon by a judge at a bypass hearing is whether the minor is ‘mature enough, and well enough informed to make her abortion decision, in consultation with her physician, independent of her parents knowledge’ or that ‘even if she is not able to make this decision independently, the desired abortion would be in her best interests’. The gateway for unchecked judicial discretion is gaping. Markers of maturity are wholly subjective determinations, as are the metrics to determine whether a minor is sufficiently informed, or where her best interests lie. After all, for a staunchly anti-abortion judge, it is entirely possible that no-one could be informed about the process of abortion and yet rationally seek it, or that it could never be in an individual’s best interests to receive abortion care as a minor. The controlling law doesn’t foreclose on these possibilities.

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The Mexico City Rule and Maternal Death

By Clíodhna Ní Chéileachair

The ‘Mexico City Rule’ is a Reagan-era regulation which bars US funding to worldwide NGOs which provide counselling relating to abortion, or referrals for abortion services, or which advocate for the expansion of abortion access. The regulation is a sticking point for the two-party reality of US politics, and has been rescinded by every Democratic president since Reagan, and reinstated by each Republican president. Trump is no exception, and his administration’s approach to the policy has been exceedingly expansionist; where the policy traditionally only applied to aid tied to family planning projects, the policy now extends to all international health care aid provided by the US government, amounting to almost $9 billion every year, and covering US aid policies in the areas of family planning and reproductive health, infectious diseases, TB treatment, children’s health, nutrition, HIV/AIDS prevention, water and sanitation programs, and tropical diseases.

The effect of the policy extends past the years in which it is actively in place. Population Action International reports on a reluctance on the part of US governmental officials and non-governmental partners to enter into agreements with organizations that may be ineligible for funding in the future based on the putative reinstatement of the policy, in effect operationalizing the policy beyond the times in which it is in active effect. Beyond the expanded remit given to the policy by the Trump administration, and the temporal expansion based on likely reinstatement, the wording of the policy itself goes some way to expanding the scope of the policy beyond what might be necessary in a vacuum. The structural effect of the policy is to prevent the funding of abortion access with US aid money (an outcome which is illegal regardless through the Helms Amendment) and abortion advocacy. The policy contemplates a neat categorization of organizations such that it is possible to carve out the aspects of a healthcare organization that deal with abortion care as an aspect of reproductive health and justice. Read More

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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REGISTER NOW (1/23)! PFC’s 5th Annual Health Law Year in P/Review

The Fifth Annual Health Law Year in P/Review symposium will feature leading experts discussing major developments during 2016 and what to watch out for in 2017. The discussion at this day-long event will cover hot topics in such areas as health policy under the new administration, regulatory issues in clinical research, law at the end-of-life, patient rights and advocacy, pharmaceutical policy, reproductive health, and public health law. Read More

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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Still Seeking Contraceptive Compromise After Zubik v. Burwell

[Crossposted from RegBlog]

By Allison Hoffman

Zubik v. Burwell was this year’s Affordable Care Act (ACA) appearance on the Supreme Court stage. Consolidated with six other cases, Zubik challenged the ACA requirement that group health plans and health insurance issuers must provide free coverage of preventative services, including all contraceptive methods approved by the U.S. Food and Drug Administration (FDA).

Some religious groups believe that the use of some or all contraceptives is morally wrong. In response, the initial preventive services regulation exempted houses of worship, such as churches, from the requirement altogether. For religious nonprofit organizations, such as universities and hospitals, later regulations created an accommodation that enabled employees to receive coverage for contraceptives without the employer having to provide it.

Even though the U.S. Department of Health and Human Services (HHS) has tried to make it easy for nonprofit organizations to receive the accommodation, it still requires those organizations, unlike churches and other houses of worship, to ask for it affirmatively through a process of self-certification. Read More

Pay No Attention to Those Tens of Thousands of Women Affected by the Contraception Litigation

Photo: Hobby Lobby
Flickr/Creative Commons—m01229

By Gregory M. Lipper

In her latest column, Linda Greenhouse predicts that the Supreme Court’s order in Zubik v. Burwell will not produce the desired happy compromise between the government and the religious organizations who object to the government’s arranging for their students and staff to receive contraceptive coverage from third parties. Towards the end, Greenhouse also describes how the objectors have inaccurately insisted that these cases are about nuns and only nuns—ignoring the dozens of other plaintiffs whose students and staff number in the tens of thousands—and how legal commentators (some of whom should know better) have gone along:

[T]here is a widespread misunderstanding that the case is about nuns, specifically the Little Sisters of the Poor, a religious order whose mission is to run nursing homes for the elderly poor. Commentary following last week’s decision perpetuated this misunderstanding. “Surely the Obama administration could find a way to provide contraception to women without involving a group of Catholic nuns,” Ramesh Ponneru, a senior editor of National Review, wrote in a Bloomberg News post titled “The Culture War Obama Didn’t Have to Wage.” Richard W. Garnett, a law professor at the University of Notre Dame, wrote on Scotusblog that the Obama administration had “aggressively and unlawfully overreached” in its “strange insistence that a community of nuns who take vows of poverty and care for the elderly poor must serve as a vehicle for delivering free contraception to their employees.” In a Wall Street Journal column titled “Big Win for Little Sisters,” William McGurn wrote that “though it was more a TKO than a straight-up ruling, the Little Sisters prevailed at the Supreme Court Monday in their fight against the Obamacare contraceptive mandate.”

This single-minded focus on Little Sisters of the Poor—which itself employs hundreds of people of different religious faiths in multiple states—overlooked the tens of thousands of women who will lose contraceptive coverage if the objectors prevail:

By my count, the Little Sisters of the Poor (who, as I’ve noted before, advertise themselves as equal-opportunity employers in the nursing home enterprise) are only one of 30 petitioners in the seven Supreme Court cases. The other 29 include Catholic and Baptist colleges, Catholic high schools, individual bishops, two chapters of Catholic Charities, other charities, and several individuals.

If anything, there are more objectors and more affected women than even Greenhouse suggests.

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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…

What to Expect When You’re Expecting at Least Another Year of Contraception Litigation

Photo: Zubik Rally
Tim Ritz/Americans United for Separation of Church and State

By Gregory M. Lipper

In a unanimous, unsigned order hailed as “an almost hilariously brazen punt,” the Supreme Court sent Zubik v. Burwell and the other contraception cases back to the lower courts for further consideration. The order states that, in light of the supplemental briefs submitted at the Court’s request, the parties should have “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’”

That, of course, describes the current accommodation, which the Court in 2014 touted as a compromise that protected women’s interests while relieving religious objectors’ of any burdens created by the previous requirement that they provide and pay for the coverage themselves. But the Court, likely split 4–4 on whether even that accommodation complies with the Religious Freedom Restoration Act, wants the parties to see if they can compromise further without subjecting women to second-class care.

These cases will almost certainly return to the Supreme Court, which may or may not have nine members by that time. But in the meantime, things are up in the air—especially for affected women:

1. The Court decided—nothing. Although objectors’ lawyers claimed victory, even the most nimble of advocates would struggle to identify an actual victory from an order that “expresses no view on the merits of the cases.” Lest any misunderstanding persist, the Court reiterated that it took no position on any of the underlying legal questions:

In particular, the court does not decide [1] whether petitioners’ religious exercise has been substantially burdened, [2] whether the Government has a compelling interest, or [3] whether the current regulations are the least restrictive means of serving that interest.

Those questions will be decided again by the Courts of Appeals, all but one of which has already ruled against the objectors. A victory this is not.

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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.