February 22, 2014

"If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form..."

"... that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to 'trigger' the provision of female contraceptives."

Wrote Judge Posner
, for the 7th Circuit panel that upheld the district judge's denial of a preliminary injunction. The claim is based on the Religious Freedom Restoration Act, a federal statute, which requires the federal government refrain from substantial burdens on religion unless they are necessary to meet a compelling government interest. Posner finds it hard to see the burden in signing a 2-page form that's mostly "boring boilerplate."

Judge Flaum dissented:
We are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith. Notre Dame tells us that Catholic doctrine prohibits the action that the government requires it to take. So long as that belief is sincerely held, I believe we should defer to Notre Dame’s understanding.

73 comments:

Pogo is Dead said...

If you like your religion, you can keep your religion.

n.n said...

It can be understood as a juxtaposition of active and passive activity. Holder argued that it is a distinction without a difference in order to increase government revenue, and so Obamacare was born.

However, it is more closely analogous to the principle of pro-choice. We do not support abortion. We will tolerate the state's mass executions. Similarly, we do not support slavery. We will tolerates its persistence.

I believe the Christian religion (i.e. moral philosophy) is founded on the premise of men and women capable of self-moderating, responsible behavior. Which in the case of sexual behavior, would require either abstinence, or accepting responsibility for a life that may conceived from their action. They can no sooner support contraception than abortion or risk being called bigots, and if their faith is well placed, eternal damnation.

MayBee said...

The burden isn't in signing the paperwork. It's that signing the paperwork leads to provision of birth control, free of charge. Which they want nothing to do with.

Posner is kind of a dick lately. Is there anyone with a bigger ego?

Kirk Parker said...

MayBee,

Not "kind of". Try "gargantuan" and them I'm with you.

Pogo is Dead said...

Them catlikkers, still bitterly clinging to their religion.

Jupiter said...

Judge Posner does not understand how performing an action which will cause another action to take place could be thought to "trigger" the second action? Does Judge Posner know what a trigger is?

What Judge Posner means, is, "We are the Government and you will obey us or be destroyed". So why doesn't he just say it?

Bob Ellison said...

Moral philosophy is alien thinking to leftists.

n.n said...

MayBee, Jupiter:

Posner fails to appreciate the moral hazard created by a pro-choice position. With respect to progressive taxation (e.g Obamacare), this may be considered undesirable but tolerable. With respect to religion (i.e. morality), this becomes a test of faith. Christians are well known for "turning the other cheek", but this mandate may breach that threshold.

Bob Ellison said...

You really must challenge yourself. Lefties don't think the way you do. Lefties only want power, and they don't know that that's what they want. They're even gratified when some schmuck like Obama gains power when they lose it. They don't think right.

cyrus83 said...

The problem Posner has is that he is unable to recognize that the way the government has set up the exemption policy, the act of providing health insurance to employees automatically triggers coverage of contraceptives - morally it does not make a difference whether it is done directly through ND or indirectly by the plan, the end result is the same and ultimately the result of action taken by ND to provide health insurance.

Far from being boring boilerplate, the university is faced with the burden that if it wants to provide health insurance, there is no way to do so without triggering a "benefit" to its employees that Catholic doctrine has always considered gravely sinful.

And perhaps we may see that moral imperative in action here. Due to the financial penalties of the employer mandate being removed for now, terminating all employee health insurance as soon as possible seems to be a rational response to this decision.

PB Reader said...

It's just the beginning of many forms to sign and oaths to take at the requirement of government.

Orwell missed it by 30 years.

SteveR said...

Posner could have written that before he heard the case

Darleen said...

Posner sees no issue with signing "boiler plate"

just like businesses who will have to sign a "boiler plate" declaration that any person they terminate from employment was NOT due to ObamaCare.

Under penalty of perjury.

Yep, just hand over more stuff to the Feds so they can come arrest you when you annoy King Barry I.

Oso Negro said...

One day the peasants will be wandering through Posner's estate.

Birches said...

The interesting thing about all of this is that there are many who are more than willing to let the "other" religions keep their religious practices intact, while focusing on abolishing any Christian objections. The Native American can keep his hair in prison, the Muslim cab driver can refuse to service someone carrying alcohol (and I happen to agree with both), but those dumb Catholics should have to sign a form. It's just a form after all (it's just hair; it's just a bottle of beer).

There is an underlying and possibly unconscious belief that Catholics and other Christians should be forced to comply because they are not "other" enough to get away with it.

I don't know, just my thoughts.

Gahrie said...

Posner is kind of a dick lately. Is there anyone with a bigger ego?

He's making one last desperate attempt to get nominated to the USSC.

Bruce Hayden said...

There is still the problem of someone having to pay for the abortion and contraceptive medications. Someone has to pay, and it isn't the federal government. That leaves the insurance company, or co-op (which, I think, made the state of the Sisters worse, because it was a religious co-op), or self-insurance. Which Notre Dame is probably big enough to do. But, in all those cases, the company or group is going to pay. It may be hidden, but they will pay, regardless of the slight of hand by the Administration.

sean said...

I don't believe Judge Posner would ever embrace the distinction or accept the limitation that Judge Flaum proposes: Posner has always considered judges as moral philosophers and himself as the best moral philosopher living.

Pogo is Dead said...

I wonder if some nation remains that still has freedom of religion.

gregq said...

Hi Posner, I've got a form here, it's 5 pages long. the vast majority of it is "boring boilerplate."

however, it does carry the sentence: "Judge Posner" agrees to give Greg Q all of Judge Posner's earnings for the next ten years."

You willing to sign? no?

Then your entire argument is revealed to be tendentious crap. isn't it?

AJ Lynch said...

Who cares what some judge thinks. What is important is what does the hideous bint Sandra Fluke think and what does President Obama think [who famously said he would hate to see his daughter punished with a baby]?

Sam Hall said...

Will the insurance company provide free birth control if the university doesn't provide health care? Of course not. Then the university is paying for and providing birth control by having a health plan.

traditionalguy said...

I suspect most Roman Priests never need birth control, so their opinion is irrelevant here.

Renee said...

Where is the insurance company going to get the funds for this free birth control? From other companies/institutions?
What does signing paper do?

Someone has to pay?

boinky said...

Basic theology...It is called "cooperation with evil".

So if I as a doc refuse to do an abortion, but refer the girl to an abortion clinic to do it, I am cooperating with the abortion.

If, however, I refer her to a specialist for a "second opinion", I am not cooperating, since not all those I have referred go on to get an abortion.

Signing a paper that tells the insurance company is cooperation. The gov't could easily fix the problem, but won't...
And if you think this will end here, you are sadly mistaken.

Renee said...

Been using NFP for ever a decade. Pretty realiable, but even if one quarter of women used it, it would cut into big pharm profits.

The big push is IUDs in teens now. Somewhat expensive out of pocket, but most plans now have a $4000 deductible before the insurance pays anything I had surgery and it killed us with oil heating.

It was breast related,wished Komen could of helped out. Nothing.

BDNYC said...

Posner doesn't know how to write.

The Godfather said...

So if Notre Dame refuses to sign the form, but provides health insurance that excludes birth control, does the university then have to pay the Obamacare/Roberts "tax"? And if the university refuses to pay the tax, then what happens? This isn't a rhetorical question; I'm trying to figure this out and would appreciate help.

chuck said...

Free vibrators would be cheaper over the long haul.

Renee said...

The Godfather, they dont taxed. They get fined. I think its $2000 a person if they dont provide free contraception.

cubanbob said...

The Godfather said...
So if Notre Dame refuses to sign the form, but provides health insurance that excludes birth control, does the university then have to pay the Obamacare/Roberts "tax"? And if the university refuses to pay the tax, then what happens? This isn't a rhetorical question; I'm trying to figure this out and would appreciate help.

2/22/14, 8:29 PM"

Interesting question.

If a non-profit is exempt from other federal taxes why would it be required to pay this tax?

Renee said...

Would an insurance company allow a contract that excluded free birth control?

Unknown said...

---provision of birth control, free of charge

Provision of abortifacients, free of charge. There wouldn't be a problem if this were about condoms.

Unknown said...

---There is an underlying and possibly unconscious belief that Catholics and other Christians should be forced to comply because they are not "other" enough to get away with it.

Yes. This President doesn't like that religion it is clear. Too bad he got so much of their votes.

Renee said...

Ther is an upcoming documentry on contraception and the affects on women's health.

http://m.deadline.com/2014/02/ricki-lake-abby-epstein-push-sweetening-the-pill-birth-control-doc/

Docu Sweetening The Pill, which just launched production, raises questions about the safety and long-term effects of hormonal birth control and is based on Holly Grigg-Spall’s upcoming 2015 book Sweetening The Pill Or How We Became Hooked On Hormonal Birth Control. The feature-length nonfic pic will take a look at the dangers of the Pill and alternative options available in the wake of recent civil lawsuits over oral contraceptives Yaz and Yasmin, as well as health complaints over the Nuvaring which have been shown to cause fatal blood clots in some women.

Ignorance is Bliss said...

If I understand the mandate, they have three options:

1) They can not provide insurance that meets the minimum coverage, and pay a burdensome penalty.

2) Provide insurance that meets the minimum coverage, including contraception.

3) Sign a waiver stating that providing contraception would violate their religious beliefs, then still provide insurance that meets the minimum coverage, including contraception.

Can't see why they have a problem with this. /sarc

Pogo is Dead said...

Race, religion, the economy, healthcare...
Victories, all.

Thanks a million, Obama voters!!

Inga said...

You're welcome.

Pogo is Dead said...

Say, could you take a look at my car?

It runs perfectly, but I was hoping you might fuck with it and destroy it completely in that Obama way you have.

If it's not too much trouble.

Birches said...

So if I as a doc refuse to do an abortion, but refer the girl to an abortion clinic to do it, I am cooperating with the abortion.

My mom worked at an Ob/Gyn for over 2 decades; they were a prolife practice. When someone came in and then decided to have an abortion, they referred them to their insurance company to find a provider that would be able to do what they were looking for. That seemed to satisfy their conscience and most of their patients.

My mom tells the story of one woman who used some sort of medical technology to get prego (she was over 40), got pregnant with twins and then decided she only wanted one of them. She was pissed that the office wouldn't refer her to someone directly. My mom says the lady was yelling at the poor, young receptionist (who was pregnant herself), saying "you don't understand how difficult you're making this." That was the only scene she could ever recall from their policy.

Birches said...

And I'm glad someone connected with Hollywood is finally looking at the uncomfortable alliance Big Phrma and "Womens Rights" groups have in pushing hormonal birth control on the masses.

We complain about ADHD over prescriptions and then hand out the pill like candy.

Steve Uhr said...

As usual Posner is right. The law demands that women be provided with free contraceptives. ND doesn't have to supply them but it does have to give notice that it will not supply them. Seems reasonable.

Renee said...

How are they not supplying contraception, if they are supplying the health insurance.

Insurance isnt free, someone has to cover the cost of free birth control.

William said...

When Claritan became an over the counter drug, it was no longer covered by insurance. People with hay fever had to pick up the tab for their allergies. I don't know what the price differential is between Claritan and a birth control pill, but the outrage differential is vast......I get the impression that this is a fabricated controversy. The point is not so much to provide women with birth control as to provide targets of outrage for feminists.

Steve Uhr said...

contraception reduces health care costs for obvious reasons. Some of those cost savings should incur to the benefit of ND in lower premiums. Perhaps it should give that money to some charity to be consistent in its convictions. Or it could use it for a post game bonfire.

Pogo is Dead said...

"contraception reduces health care costs for obvious reasons."

The cheapest health care is when no one is ever born.

When people are costs rather than good in their own right, all sorts of evil is permitted, and then mandatory.

somefeller said...

I remember when Judge Posner was considered to be a leading light of conservative jurisprudence and his theories of the economic analysis of law were helping being respect and support for capitalism back to the law. Good times, good times. But now, he's just another RINO to be hunted, according to a certain set. So it goes.

Renee said...

@Pogo

But we're are at below a fertility rate of two children per a woman. And people choose to have kids anyways.

Its the IUD they want covered, because young women can't take it out themselves.

Pogo is Dead said...

"But we're are at below a fertility rate of two children per a woman"

And that means what exactly?
That you have determined the correct rate of fertility?

Pogo is Dead said...

"Its the IUD they want covered, because young women can't take it out themselves."

So why shouldn't they pay for that themselves?
Aren't they feminists?
Aren't they independent?
Why ask me to pay for their purely pointless private sexual activities, resulting as they do n nothing, save a few brain chemicals and various stains?

Pogo is Dead said...

Will we next be required to pay for pedophile trips to Bangkok?
Why not?

cyrus83 said...

Accepting that sexual behavior is a matter worthy of government regulation is likely to have bad consequences over time. How long is it before the feds mandate contraceptives for teenage girls for their own good (a bonanza for the pharmaceutical industry), or well-meaning officials opt for forced sterilizations of certain populations in the public interest?

I would think the civil libertarians would be up in arms over the government's essential argument that people can't be trusted to manage their sexual lives in responsible ways, and that government "help" is required to influence them to make "better" choices.

Ignorance is Bliss said...

Steve Uhr said...

contraception reduces health care costs for obvious reasons.

Do you have a link to an actual study or serious economic analysis examining the expenses and savings to the insurance company? I've heard this claim often, but since most people who don't want to get pregnant will pay for contraception themselves if it is not covered by insurance it is not obviouse that this is a net savings, or even break-even for the insurance company.

Ignorance is Bliss said...
This comment has been removed by the author.
n.n said...

Steve Uhr:

Contraception reduces the problem set. However, the cost of health care per capita is not necessarily correlated with population. It is more accurately correlated to the general health of the population, which is closely dependent on the age distribution. Both outliers, the very young, and the very old, skew the health of the population to increase health care costs.

This is why Obamacare marketing has targeted the twenty and thirty-somethings in order to ensure that "affordable" insurance is fiscally viable. This age group is in the process of accumulating capital and has reduced need for insurance. So, they can be taxed without themselves being a burden on the system. Unfortunately, both abortion and delayed reproduction skew the population to an older age, which is perhaps why illegal immigration has been tolerated in order to compensate for this unfavorable demographic shift.

Kirk Parker said...

Pogo,

It means the eventual death of our civilization. Duh.

tds said...

by notifying that they won't be providing contraception and for whom, they are making work of government easier => they are helping in distributing contraception.

Chase said...

"Posner is a bit of a dick lately".

No, Posner is worse than that. Much worse. He is an evil man. Literally in the mold of Hitler and Stalin and others who do not believe the rules of law apply to them or their beliefs. The First Amendment and the RFRA are visciously violated by his opinion. It is impossible to find a rational reason for his opinion. He is a stain on humanity and his grandchildren will forever be ashamed at him and his backward ilk. What a sad waste of a human being.

Chase said...

"Posner is a bit of a dick lately".

No, Posner is worse than that. Much worse. He is an evil man. Literally in the mold of Hitler and Stalin and others who do not believe the rules of law apply to them or their beliefs. The First Amendment and the RFRA are visciously violated by his opinion. It is impossible to find a rational reason for his opinion. He is a stain on humanity and his grandchildren will forever be ashamed at him and his backward ilk. What a sad waste of a human being.

Renee said...

@Pogo

No they are not feminists, they're Julias.

Remember its a right. Make anything a right, then it should be at someone else's expense.

Mark said...

And there goes Chase comparing him to Hitler.

I wonder if a Althouse will call attention to him like she did to the protester with the Hitler sign. Probably not, as she agrees with him.

RecChief said...

here is a question.

Does Notre Dame self insure? Or rather is there an entity, technically a third party but wholly owned by the Catholic Church?

And if ND does not, what about other organizations that do? Woudl they then be required to employ a different insurer in order to provide that benefit that they think is morally wrong in the first place?

RecChief said...

“out of our pockets, off our backs and out of our bedrooms,”


is an idea whose time has come

Rusty said...

MayBee said...
"The burden isn't in signing the paperwork. It's that signing the paperwork leads to provision of birth control, free of charge. Which they want nothing to do with."

It is a question of sovereignty. By signing the paper you agree that the state is sovereign not god.

Mid-Life Lawyer said...

I agree. Judge Posner does have trouble understanding.

Skipper said...

One can "believe" himself out of any law, as long as there is no compelling governmental interest?

Chris Arabia said...
This comment has been removed by the author.
Chase said...

Mark,
Comparing a person's actions or mindset to Hitler is not always out of bounds in commentary or debate. Who gets to make such a rule? Who is the bully declaring such an of the moment politically correct thing? I would be the first to agree that so much of Hitler referencing is ad hominem and diversion, but to state that there is never a place for comparison to such an easily understood reference is to border on fascism itself.

Oh wait . . . There is a group that absolutely hates using Hitler as a reference point for contemporary evil acts. I think they are called neo-nazis. That doesn't mean that I in anyway attribute your discomfort with Hilter references to being a Hitler sympathizer. Just wondering why a free exchange of serious debate should follow their rules.

I do believe that Posner, whose opinions I have followed for years, has become of such a wishy-washy whixhever way the wind blows today character that he borders on and occasionally steps over the line into evil. This latest opinion is flat out anti-First Amendment and boggles the mind in light of the RFRA. He is steadily moving the wrong direction, And his decisions are part of moving this country steadily away from Constituional protections. And THAT is a legitimate discussion.

Chase said...

What William said.

Chase said...

What Pogo says

gregq said...

Posner babbled:

"If the government is entitled to require that female contraceptives be provided to women free of charge"

And the point is, under ObamaCare, NO the Federal Government is NOT allowed to force people to provide those contraceptives in violation of their religious beliefs.

RFPA says you have to explicitly "opt out" of the RFPA if you're going to force people to do something that violates their religious beliefs. Since the Democrats did not include an "RFPA Opt Out" clause in ObamaCare, the Federal Government can not use ObamaCare to force people to behave in the way Posner also wants them to be forced.

Posner is an ass, a thug, and an incompetent judge.

gregq said...

Steve Uhr said...

As usual Posner is right. The law demands that women be provided with free contraceptives.

No, Steve, you, and Posner, are both wrong. The law does not exempt itself from RFPA. RFPA says you can't force people to violate their religious beliefs, even with a generally applicable law, unless you've explicitly said that the RFPA does not apply.

So, show us where they opted out of the RFPA (you can't), or else you're wrong.

mccullough said...

Posner will be reversed by the Supreme Court. Again. Also, for a guy who likes economic analysis in his opinions it's astonishing he refers to this as free of charge. He would usually analyze whether this mandate will cause lower wages to the employees because costs to the employer will increase as the insurance companies pass on the costs of the mandate back to the employer and whether providing birth control will lower the costs in saved pregnancy costs and costs of children, etc.