The Contraceptives Coverage Saga Continues…

Well, hopefully we’ll know the fate of the ACA by tonight.  But even if President Obama wins, there will still be uncertainty about the fate of the contraceptives coverage mandate.

A number of employers claim that the mandate violates their rights to religious freedom by requiring them to offer free coverage for medical products and services they find objectionable, and the administration has taken a number of steps to offer accommodations.  But as a neutral law of general applicability, the mandate doesn’t violate the First Amendment under SCOTUS jurisprudence, and even under the Religious Freedom Restoration Act, there’s a strong argument that the mandate is ok, either on the grounds that it does not actually impose a substantial burden on religious exercise or that  it is supported by a compelling government interest.

Nonetheless, federal courts have reached different conclusions as to the mandate’s permissibility.  In July, a federal district judge in Colorado issued a preliminary injunction blocking enforcement of the mandate against a religious employer running a secular (HVAC) business, while in September, a federal district judge in St. Louis rejected a similar challenge by the religious owner of a mining company.  Last week, a federal district judge in Detroit also issued a preliminary injunction against enforcement, indicating that while neither side had shown a strong likelihood of success on the merits, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”  Several other challenges to the mandate remain pending.

So let’s just add this to the list of uncertainties that will remain after the results of today’s election are in – and to the list of reasons why employer-based health care really ought to be abandoned in favor of a single-payer, public system.

There, now that ought to get some discussion started…

Politics in Practice: Intense Conversations in Intensive Care

By Erin Talati

As Holly Lynch describes in her recent post, the upcoming election brings a number of bioethics questions directly to the public. Two of the three ballot questions in Massachusetts invite discussion and debate on the controversial issues of physician-assisted suicide and the medical use of marijuana. The introduction of these issues as ballot initiatives offers physicians the opportunity for rich discussion on important topics with their patients. But, how much should physicians and other health care providers share with patients regarding their own views on these issues?
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Missouri District Court Dismisses Challenge to Contraception Mandate

By Nadia N. Sawicki

Litigation challenging the PPACA contraception mandate continues, and last week’s decision by the U.S. District Court for the Eastern District of Missouri in O’Brien v. HHS brings the total number of decisions on the merits to two (three cases – Nebraska v. Sebelius, Wheaton College v. Sebelius, and Belmont Abbey v. Sebelius – have already been dismissed for lack of standing).

Judge Carol Jackson’s opinion dismisses all the plaintiffs’ claims, but focuses primarily on the Religious Freedom and Restoration Act (RFRA) claim.   RFRA, which was passed by Congress in response to the Supreme Court’s 1990 decision in Employment Division v. Smith, applies a stricter standard of scrutiny to burdens on religious exercise than is constitutionally required under Smith.  A plaintiff who can demonstrate that his freedom of religious exercise is being substantially burdened by a law will prevail unless the government can prove that the law serves a compelling state interest using the least restrictive means possible.

With respect to O’Brien’s RFRA claim, the District Court concluded that requiring a corporate employer to cover contraception in its health insurance plan does not impose a substantial burden on the entity’s right to religious exercise.  Or rather, the entity’s hypothetical right to religious exercise – the District Court assumed for the sake of argument that a secular corporation can, in fact, “exercise” a religion.  The court concluded, however, that whatever burdens exist on the plaintiffs’ right of free exercise, those burdens are “too attenuated to state a claim for relief.”   Unlike other cases where plaintiffs have been able to demonstrate substantial burdens on religion, the PPACA contraception mandate would not prevent the plaintiffs in O’Brien from keeping the Sabbath, raising a family according to Scripture, eschewing contraception, or expressing an opinion to employees.  Rather, the mandate merely requires indirect financial support of a practice with which the plaintiffs disagree – no different, the court suggests, than paying a salary to an employee who, through her own free will, chooses to purchase an objectionable product.  While the court did not draw this connection directly, this reasoning is similar in kind to the reasoning used by courts in rejecting claims of conscientious objection by taxpayers.

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New Book on Conscientious Objection in Health Care

Related to the conversations we’ve been having lately on conscience, I wanted to point you to a relatively new book on the topic by Mark WicclairConscientious Objection in Health Care: An Ethical Analysis, Cambridge University Press, 2011.

From Amazon: “Historically associated with military service, conscientious objection has become a significant phenomenon in health care. Mark Wicclair offers a comprehensive ethical analysis of conscientious objection in three representative health care professions: medicine, nursing and pharmacy. He critically examines two extreme positions: the ‘incompatibility thesis’, that it is contrary to the professional obligations of practitioners to refuse provision of any service within the scope of their professional competence; and ‘conscience absolutism’, that they should be exempted from performing any action contrary to their conscience. He argues for a compromise approach that accommodates conscience-based refusals within the limits of specified ethical constraints. He also explores conscientious objection by students in each of the three professions, discusses conscience protection legislation and conscience-based refusals by pharmacies and hospitals, and analyzes several cases. His book is a valuable resource for scholars, professionals, trainees, students, and anyone interested in this increasingly important aspect of health care.”

Larry McCullough writes a glowing review over at Notre Dame Philosophical Reviews.

Mark’s book is broader than mine (Conflicts of Conscience in Health Care: An Institutional Compromise) in that he addresses conscientious objection as it arises in a variety of health care professions, as well as institutional objections, whereas I focus exclusively on objection by individual physicians.  However, Mark focuses on the ethics and ethical limits of conscientious objection, and does not consider means to enforce those limits or ensure patient access.  Such practical details are a major focus of my book.  So check them both out!

[H/T Glenn Cohen, via John Goldberg]

Refusals and Reasons: Is the Best Interests Principle the Best Standard?

By Erin Talati

In my last post, I puzzled over the boundaries of the state’s right to step in to protect the interests of children over the religious wishes of their parents, prompted by the question of whether it would be appropriate to prophylactically transfuse the child of a Jehovah’s Witness in order to minimize the risk of future harm.   As I continue to think about this question, I remain convinced that the boundaries are exceedingly fuzzy and do not necessarily seem to distinguish circumstances in a way that favors action “in the best interests of the child.” Rather, in looking at another situation in which the interests of the child may come into conflict with the religious or other interests of the parent, on the whole, it seems that the decision to intervene rests more on the legal basis for intervention rather than overall promotion of the best interests principle.

Take, for example, the general approach to vaccine refusals by parents.  The rights of parents to refuse vaccines for their children, generally, can be grounded in medical, philosophical, or religious objections.  Medical exemptions, based on medical contraindications to vaccination, remain the most robust mechanism of parental refusal. All states permit exemption from mandatory vaccination on the basis of medical exemptions.  Exemption for medical contraindication is consistent with the best interests principle as vaccination in these cases arguably is not in the best interests of the child.  Fewer states permit vaccine refusal on the basis of moral or philosophical objections. In almost all states, excepting Mississippi and West Virginia, parents can refuse vaccines for religious reasons, with states requiring varying levels of support for refusals grounded in religious objection.  It seems reasonable that, from the standpoint of protection of individual liberties, states would preference religious beliefs of parents in allowing refusals. Still, when either a religious or philosophical objection are not concurrently accompanied by a medical contraindication to vaccination, neither justification for refusal promotes action in the best interests of the child.

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Tobacco Labeling and the Ethics of Persuasion

by Nadia N. Sawicki

The D.C. Circuit’s recent decision vacating the FDA’s graphic labeling requirements has prompted a flood of valuable commentary about compelled speech doctrine, including Richard Epstein’s, below.  While analysis of the First Amendment issues is important, I view the R.J. Reynolds case instead as an example of how emphasis on formal legal arguments may detract attention from the underlying source of public opposition.

My current research focuses on the state’s use of emotionally-gripping graphic imagery in medical and public health contexts. I focus on two examples – the “fear appeal,” exemplified by the FDA’s graphic tobacco labeling requirements; and appeals to positive emotions, such as maternal bonding, exemplified by state laws requiring that women view ultrasound images and hear the heartbeat of their own fetus before consenting to an abortion.

Both types of appeals to emotion have faced constitutional challenges – as violations of First Amendment compelled speech doctrine, or imposition of undue burdens on reproductive liberty interests.   But these formalistic constitutional tests do not, in my opinion, get at the heart of the public’s concern about government persuasion using emotional imagery.  Few contemporary commentators are willing to challenge requirements for scientifically valid textual warnings. Rather, it is the use of images – diseased lungs, cadavers, fetal heartbeats – that strikes a chord of concern among many critics.  Whether designed to inspire fear, love, or disgust, the government’s use of these images to persuade seems to run counter to the principles of democratic discourse.

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Making Sense of Tobacco Regulation: The First and Fifth Amendment Challenges

[posted on behalf of Richard Epstein]

The entire question of the FDA’s tobacco regulation is likely to spur extended commentary, given the split of opinions between the D.C. Circuit, which knocked out the packaging labels by a divided vote in RJ Reynolds v. FDA, and the earlier decision in the Sixth Circuit, that sustained the regulation.  The packaging regulations have to be resolved once and for all on a national level, so the case will go up even, I think, if the D.C. Circuit decides to follow the Sixth Circuit in an en bank opinion.  So what then should be done?

The issue is one that I have approached before.  In the interests of full disclosure, I am a fierce opponent of smoking, who worked in from the mid-1980s into the early 1990s as a consultant for the tobacco lawyers on tort liability issues.  After that time, I worked on a number of other issues, in some instances taking positions adverse to the industry.  This particular post is done solely and wholly on my own.

In thinking about this case, much of the doctrinal dispute revolved around the much mooted  Central Hudson test used in too many First Amendment Cases.

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