This isn’t about law and religion, but readers might enjoy John McGinnis’s essay in the City Journal on last week’s decision in the Affordable Care Act case, King v. Burwell. John argues that Chief Justice Roberts’s opinion is principled, though wrong, on statutory interpretation. Did I mention John cites my early scholarship on statutory interpretation? My salad days, before I discovered law and religion.
In a much-discussed Atlantic essay, “Why I Hope to Die at 75,” Ezekiel Emanuel — physician, public commentator, and prominent supporter of the Affordable Care Act — argues that we’d all be better off if we died at 75. That way, we would escape the debility and indignity that accompany old age and avoid being burdens to our children and other loved ones. And we would have the solace of not outliving our productivity. After all, he writes, “by 75, creativity, originality, and productivity are pretty much gone for the vast, vast majority of us.” Emanuel has no plan to commit suicide if he reaches 75, he says. But he plans to reject all medical treatments, even routine ones, that go beyond the palliative.
Emanuel rightly mocks “American immortals” who seem to believe they should (and maybe will!) live forever. And, in a culture like ours, which values youth and professional achievement virtually above everything else, his argument has a kind of plausibility. I’ve had 25 year-old students tell me they already feel over the hill. Why linger on into your eighties or nineties, when your best days and accomplishments are far behind you? Plus, society would save lots of money if people stopped seeking medical care at 75.
Nonetheless, there’s a serious flaw in Emanuel’s thinking. Strength, health, creativity — these are good things, but they are not the only things that give life meaning. From a Christian perspective, for example, the point of life is to express gratitude to and love for the Lord, and this we can do at any age. In the fullness of time, God will call each of us; until then, we have to try our best. There’s no point rushing Him.
Not everyone believes this, of course. But one needn’t be a Christian, or a religious believer of any kind, to appreciate that old age has some things to offer. “For old men who are reasonable and neither cross-grained nor churlish find old age tolerable enough: whereas unreason and churlishness cause uneasiness at every time of life,” said the pagan Cicero (above). And one needn’t be a religious believer to see that the elderly may still have much to contribute to us, even if they are weak, sick, and no longer able to write symphonies.
In a lovely response to Emanuel, my friend, John McGinnis, explains this, offering his own parents as an example. John does a much better job than I could, so I’ll just quote him:
But youth and good health do not measure humanity. Millions in diminished health enjoy life, being with their relatives, laughing at old movies, even just sitting in the breeze and sunshine. And their relatives and friends enjoy being with them. Indeed, they may find in the elderly’s struggle with aging an inspiration and a reaffirmation of life. In caring for the frail, weak and sometimes woebegone, they may also expand their own sympathies and express some small measure of gratitude for the debt of a good upbringing that can never be fully repaid.
That is certainly my experience watching my parents age well past 75. I have never admired my father more than when at the cusp of ninety he faces down his own infirmities and cares for my mother who has Parkinson’s disease. And although much is taken from my mother, much abides—her concern for others, her delight in reading new novels and rereading old ones. Emanuel argues that in seeing the decline of those we love, we may forget our happy memories of them in their years of vigor and achievement. But those memories do not need to summoned at particular times, because they infuse my being. In any event, the most valuable memories of all are not defined by physical wellbeing but by spirit and character. For so many people beyond 75 the forging of character continues and the power of their spirit at their end will instruct us by example at our own.
For one important thing, though, Emanuel is to be commended. Most of us do our best to ignore our mortality and the questions it raises about how we’re living our lives. As Pascal observed long ago, people will do pretty much anything to distract themselves and avoid thinking about it. That’s not wise; even a long life goes by so very fast. Every writer knows the benefits of deadlines: they force you to concentrate and get serious. Well, Emanuel says, he’s given himself a deadline.
Edward A. Morse (Creighton U. School of Law) has posted Lifting the Fog: Navigating the Penalties in the Affordable Care Act. The abstract follows.
This article provides an analysis and critique of tax penalties affecting employers and individuals in the Affordable Care Act. After an overview of the Act and its intended role in addressing problems in the health insurance system, the article turns to examine the employer and individual mandates, along with the requirement of minimum essential coverage. It argues that behavioral effects of these provisions are unlikely to achieve the desired policy outcomes. Moreover, the failure to accommodate conscience exemptions for employers and citizens with objections to contraceptive coverage likewise erects a barrier to achieving the desired policy goal of expanded coverage. Finally, the article briefly touches on the problems associated with state exchanges and their implications for employers and citizens seeking health insurance coverage. An appendix shows hypothetical computations affecting an employer decision to shift employees to exchanges rather than to continue employer-provided coverage.
And from the Introduction: Continue reading
For any readers who are local and free on Sunday morning: I will be giving an informal talk at Grace Church in the Village. Here is the church’s description:
“Do religious organizations have special constitutional protection from government regulation? Professor Tebbe will explain and lead discussion on recent Supreme Court rulings on employment discrimination and challenges to the Affordable Care Act.”
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.
Another victory (though perhaps only temporary) for plaintiffs challenging the Affordable Care Act’s contraception mandate under RFRA. A federal district court in Michigan has granted a preliminary injunction barring enforcement of the mandate against a for-profit corporation whose owners object to complying with the mandate because of their Catholic beliefs. According to Judge Robert Cleland, neither the corporation nor the government had made a strong showing of success on the merits: the mandate might be the least restrictive means of achieving a compelling state interest, but the question was close. Given the religious freedom concerns here, however, the balance tipped in favor of granting the preliminary injunction, in order to avoid irreparable harm to plaintiffs while the case continued. The court dismissed a challenge to the mandate brought by a non-profit Catholic organization on the ground that the organization fit within a temporary regulatory safe-harbor and had not yet suffered a cognizable injury. The case is Legatus v. Sebelius, 2012 WL 5359630 (E.D. Michigan, Oct. 31, 2012).
Robin F. Wilson (Washington and Lee U. School of Law) has posted The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and other Clashes Between Religion and the State. The abstract follows.
This Article considers a burning issue in society today—
whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political
maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion
and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate same-sex marriages. In all these contexts, religious objectors claim a special
right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and
may impose significant costs on others. Legislators and other policymakers have struggled with how to advance two compelling, and at
times conflicting, values—access and religious liberty. This Article examines, and responds to, a number of “sticking points” voiced by legislators
about a qualified exemption for religious objectors to the duty to facilitate same-sex marriages—concerns that bear an uncanny resemblance
to reasons why some believe the Obama administration should not yield
further on the contraception mandate. This Article maintains that religious accommodations qualified by hardship transform what could be a zero- sum proposition into one in which access and religious freedom can both be affirmed.
The Becket Fund will host a conference, “Islamic Law, Same-Sex Marriage, and the Affordable Care Act” in Washington, DC, on Thursday, September 13. For details, click here.
Jessica L. Waters (American University School of Public Affairs) has posted Testing Hosanna-Tabor: The Implications for Pregnancy Discrimination Claims and Employees’ Reproductive Rights. The abstract follows.
In April 2009 Jaretta Hamilton, a married elementary school teacher, was fired after her employer school learned that Hamilton became pregnant prior to her wedding. In October 2010 Christa Dias, an unmarried technology coordinator for two schools, was fired after her employer learned Dias was pregnant via artificial insemination. In 2011, Emily Herx, a married Language Arts teacher who was struggling with infertility, was fired after the school where she had been teaching for seven years learned that Herx was undergoing in vitro fertilization treatments. In the fall of 2011, Cathy Samford, an engaged middle school science teacher and volleyball coach, was fired after her employer discovered Samford’s pregnancy.
Can the employer schools of these four women legally fire them for attempting to become pregnant or actually becoming pregnant? Because the schools in question are religiously-affiliated schools, in the wake of Hosanna-Tabor Evangelical Lutheran Church v. EEOC the answer may be yes.