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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“The New Normal” and Reproductive Technology and the Law

Inspired in part by attending the “Baby Markets Roundtable” (an annual gathering of reproductive technology and the law scholars) this week at Indiana Bloomington, I wanted to share a few thoughts on the new NBC television show The New Normal. The series is a sitcom that follows the lives of a gay male couple (David and Bryan) who decide to employ a surrogate (Goldie), who herself has a young child through a prior relationship (Shania). The last cast member that is part of the family is the Goldie’s fairly right-wing grandmother known as “Nana.”

First the good: This is one of the few portrayals of surrogacy on TV, period. With a few exceptions, usually surrogacy comes in as a plot-of-the-week on lawyer shows when something has gone wrong. Here is one of the few positive, normalizing, portrayals of surrogacy.

Now the not-so-good:

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California Surrogacy Bill Reacts to Lawyer Bad Acts

[posted on behalf of Judy Daar]

Mishaps in assisted reproductive technologies (ART) breed public outcries and legislative hand-wringing.  It is no wonder a 2011 San Diego-based ART debacle dubbed “an international baby-selling ring” caught the attention of the California legislature.  In a state where elected officials practically swear fealty to the mantra, “there ought to be a law,” the conviction and imprisonment of a prominent attorney who ran a gestational surrogacy agency gone awry was bound to garner lawmaker attention.  The resulting sausage, A.B. 1217, passed legislative muster last week and now awaits signature or veto by Governor Brown.

The story of A.B. 1217 is far more elaborate than the typical sequence of mishap to measure that often accompanies ART blunders.  In California alone, our codes are peppered with laws reacting to all manner of ART black eyes, including the egg-swapping scandal at the UCI Center for Reproductive Health in the mid-1990s, the luring of egg donors by big money pay outs and the criminal mishandling of trust funds supplied by intended parents in surrogacy arrangements. Overwhelmingly, these laws are dormant but their enactment expressed the public’s outrage when third parties manipulated and mishandle the birth of an assisted conception child.

A.B. 1217 is likewise designed to forestall a perceived evil – the selling of ART offspring, a noble enough cause. But the bill began its legislative life in February 2011 as a behemoth “kitchen sink” overhaul of ART law in the Golden State.  The 34-page bill regulated all manner of assisted reproduction, sometimes for the better (defining “infertility” for purposes of state mandated health insurance as “the desire to achieve pregnancy by means other than sexual intercourse” – thus, growing the coverage pot for single and same-sex parents), and sometimes for the worse (requiring anyone using ART to undergo a mental health consultation – implying that infertility itself is a psychological impairment and burdening couples who just need a little help reproducing using their own gametes with an intrusion not visited upon those able to reproduce naturally).

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Is the Self Defense Exception Consistent with the Belief that a Fetus is a Person?

In Glenn Cohen’s first post on this blog, he questioned whether Mitt Romney’s position on abortion was coherent with respect to the rape and incest exception, but did not question the self-defense exception itself.  He addressed the self-defense exception briefly: “Through the well-known doctrine of self-defense, the criminal law has long recognized that an individual may be justified in killing to protect his or her own life, or possibly health, and these exceptions merely reflect a similar view as to fetuses.”  He is correct to say that this is the established position, one that dates at least as far back as the Talmud.  But, assuming one believes that the fetus is a person entitled to the full panoply of rights, is the self-defense exception defensible?

Lethal self-defense is generally legally justified when used to protect your life.  This is even true in cases where the attacker is not morally culpable. Judith Jarvis Thompson, in her article entitled “Self Defense,” argues that this is true because they will “otherwise violate your rights that they not kill you.”  She then extends the rights of self-defense to third parties arguing that the rights are not personal (agent-relative).

Additionally, in the article “A Defense of Abortion,” Judith Jarvis Thompson argues forcefully against the position that abortion should be impermissible even when the mother’s life is at risk. This position is untenable from the perspective of the mother because “[i]t cannot seriously be said that . . . that she must sit passively by and wait for her death.”  In the abortion case, it follows that a third party (doctor) has the right to save the mother’s life as well.  I find this to be a convincing argument against the position that abortion should never be allowed.  But does it establish that every time the health of the mother is at risk she has the right to abort the fetus, killing a person?

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Should Mitt Romney (or Others Who are Pro-Life) Support Rape and Incest Exceptions to Abortion Bans?

by Glenn Cohen 

As America’s attention focused on the Republican Convention and the Obama campaign tries to portray a “Republican War on Women” at the Democratic one, last week Mitt Romney tried to clarify his position on abortion, namely: while he is generally against abortion, he would make an exception for cases where the mother has been raped or is the victim of incest. While politically savvy, based on other beliefs Mitt Romney has, this position is hard to defend if not incoherent.  Here is why: 

Mitt Romney, like most people who would outlaw abortion, must subscribe to two core beliefs: (1) Fetuses are persons and get the full panoply of the rights of persons from early on in their development (for Romney, like many, at “conception”), or at least possess a right not to be killed. (2) The mother’s interest in protecting her bodily integrity, making important reproductive or life choices, etc, does not outweigh the fetus’ right not to be killed. This is why Romney and other pro-lifers would prefer that abortion be banned even in the first trimester.

This logic is not incompatible with exception for the health or life of the mother. Through the well-known doctrine of self-defense, the criminal law has long recognized that an individual may be justified in killing to protect his or her own life, or possibly health, and these exceptions merely reflect a similar view as to fetuses.

The rape and incest exceptions, though, are on a different footing entirely.

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