Gedicks on the Affordable Care Act’s Contraception Coverage Mandate

Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate. The abstract follows.

 The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One’s religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs of anti-contraception beliefs that they do not share.

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Van Wie Davis, “Ruling, Resources and Religion in China”

This October, Macmillan Publishing has published Ruling, Resources and Religion in China by Elizabeth Van Wie Davis (Colorado School of Mines). The publisher’s description follows.

 China is not an easy country to rule: it is experiencing rapid growth and with it rapid social change. Resources and religion are two of the most difficult of its challenges, and their combination with ethnicity is not unique to China. It may well be one of the major underlying currents of the 21st century, and is present throughout Asia—with the Baloch of Pakistan, the Kurds of Iraq and Turkey, and the Timorese of the former island of East Timor in Indonesia, now Timor-Lest. In all these nations, as in China, ethnic identity, often united with religious differences, is driven by the presence of valuable resources to create a nationalism with economic underpinnings. With China, however, the outcome is vital, as how it copes with the pressures for good governance with the Asian economic model, treats its ethnic minorities under scrutiny, and gathers resources to fuel its dynamic economy impacts us all.

 

Classic Revisited: Hamburger, John Stuart Mill on Liberty and Control

The historian of political ideas, Joseph Hamburger, who spent nearly all of his long and distinguished professional career in the Yale Department of Political Science, was an expert in 18th, but particularly 19th, century British intellectual history.  My little essays on Sir James Fitzjames Stephen as well as some book-related research on Edmund Burke have brought with them the great good luck of an introduction to the writing of this immensely thoughtful and erudite scholar.  Fairly recently, I picked up Professor Hamburger’s book on John Stuart Mill: John Stuart Mill on Liberty and Control (1999).

The thesis of the book is that the strong and unqualified libertarian understanding of Mill — the view that Mill was an unadulterated champion of freedom for its own sake — is very much mistaken.  Relying on the major works (the Logic, On Liberty, Utilitarianism, The Subjection of Women, etc.) as well as on many less well-known writings and letters, Hamburger argues that what interested Mill was liberty and control, and fairly substantial and intrusive types of state and social control at that:

[A]n explanation of Mill’s overarching argument in On Liberty must explain the coexistence of these two apparently opposite positions.  This is made necessary because the provisions for controls were not small exceptions to a general presumption that in most circumstances an expansive liberty ought to prevail . . . . [T]he range of cases in which [Mill] would punish, his approval of punishments for mere dispositions toward conduct that would injure others, and above all, his explanation of his purposes to [his friend] George Grote indicate that his rationale for liberty in combination with control  requires a different explanation.  It is also necessary to explain how, for Mill, the provisions for both control and liberty were not contradictory, but in fact were compatible means of implementing a coherent plan of moral reform.  (18-19)

Professor Hamburger proceeds in the following chapter to discuss the movement of Mill away from an interest in institutional reform (something which always greatly interested Bentham) toward a more ambitious plan for cultural and moral reform (in tandem with and inspired by his wife, Harriet).  He then spends several very interesting chapters discussing Mill’s aim to vanquish Christianity as the de facto social morality and replace it with a “religion of humanity” — the new moral system which would strike the balance between liberty and control properly:

The real task of religion was to direct emotions and desires away from low objects and to be “paramount over all selfish objects of desire.”  Moreover, it ought to make us disinterested: “It carries the thoughts and feelings out of self, and fixes them on an unselfish object, loved and pursued as an end for its own sake.”  Christianity, however, in Mill’s view, did anything but this:

The religions which deal in promises and threats regarding a future life, do exactly the contrary: they fasten down the thoughts to the person’s own posthumous interests; they tempt him to regard the performance of his duties to others mainly as  a means to his personal salvation; and are one of the most serious obstacles to the great purpose of moral culture, the strengthening of the unselfish and the weakening of the selfish element in our nature.  (43, quoting “Utility of Religion”)

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Another Mandate Lawsuit Dismissed on Ripeness Grounds

The United States District Court for the Western District of Pennsylvania has dismissed without prejudice the complaint of the Diocese of Pittsburgh, Catholic Charities of the Diocese of Pittsburgh, and Catholic Cemeteries against the federal government related to the contraception mandate.  The Diocese of Pittsburgh operates several schools and other charitable institutions, and it self-insures its employees; some of its health plans were grandfathered in by the regulations, some were not.

The court held that the temporary safe harbor provision (which expires on January 1, 2014) and the Advanced Notice of Proposed Rulemaking filed by the federal government on March 21, 2012, which suggests that the government may be amenable to an emendation of the (now final) rule, both indicate that the case is unripe.  As my constitutional law students studying for their Tuesday examination will surely know, ripeness turns on the questions of “fitness” of the issue for adjudication and hardship to the parties of denying review.  The court held that even though the current law is final and has been formally promulgated, the noises made by the government about changing the regulations — in combination with the temporary safe harbor and the presumption that the government is acting in good faith — mean that the case is unripe.  The reasoning more or less follows the pattern set in the Belmont Abbey case (see prior posting).  For good measure, the court held that plaintiffs here had failed to allege standing as, in the court’s view, the injury alleged was too speculative.

The case is Zubik v. Sebelius, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012).