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State cites First, Fifth amendments in suit over new federal regulations that could limit birth control coverage by insurers
By adamg on Sat, 10/07/2017 - 1:06pm
Federal laws that let employers strip birth-control coverage from workers violate the First Amendment ban on government support of religion and are sexist and so violate the the Fifth Amendment right to equal protection, state Attorney General Maura Healey argues in a suit filed yesterday.
In her suit, filed in US District Court in Boston on behalf of the Commonwealth, Healey also argues the Trump administration broke the law by imposing the regulations without allowing for any public comment or administrative review.
At the heart of Healey's argument against the "interirm final rules" (IFRs) are the fact that the restrictions are based on religion and only target women.
The Departments have acted to promote employers' religious beliefs over the autonomy of women—and other employees - who do not share those beliefs.
Through the IFRs, the Departments have empowered employers to impose their religious beliefs on their employees and their employees' dependents. The expanded exemptions grant employers veto power over whether employees receive separate contraceptive coverage through the accommodation process. Employers have no legitimate interest injecting their religious beliefs into this independent method for providing contraceptive coverage.
The IFRs accommodate employers' religious beliefs by imposing constitutionally impermissible harm on employees. In addition to effectively depriving some women of needed care entirely, the expanded exemptions will impose significant financial, logistical, informational, and administrative burdens on the thousands of employees who lose contraceptive coverage under its terms.
Healey then turns to the Fifth Amendment's right to equal protection:
The Departments have violated the equal protection guarantee implicit in the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The expanded exemptions created by the IFRs impermissibly target women for adverse treatment.
The IFRs insert a gender-based classification into the ACA's preventive care provisions by selectively authorizing employers to use their religious beliefs to deny critical health insurance coverage for women.
The expanded exemptions undermine protections inserted into the ACA by Congress for the explicit purpose of guaranteeing women equal access to preventive medicine.
The expanded exemptions will result in women losing access to medically necessary contraceptive care and services while leaving coverage for men unchanged.
The expanded exemptions do not serve an important governmental objective sufficient to justify the gender-based discrimination.
Healey is seeking both a temporary and permanent injunction against the rules.
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Comments
Frivilous lawsuit
This issue has already been decided. Filing this case is a waste of Massachusetts tax dollars.
Not saying Healey's on the wrong side of the issue, just that she's wasting resources.
No she isn't wasting
No she isn't wasting resources; she is doing her job for half the population of this state. Remaining quite does nothing.
The AG's office is good at
The AG's office is good at that.
http://www.masslive.com/politics/index.ssf/2014/12/massachusetts_pays_12...
From your link...
"The U.S. Supreme Court in June overturned Massachusetts' law establishing a 35-foot buffer zone around abortion clinic entrances, finding unanimously that the law violated constitutional rights to free speech.
The law was passed in 2007. It was upheld by the U.S. District Court and the 1st U.S. Circuit Court of Appeals before it was overturned by the U.S. Supreme Court."
OK, my two cents, It was overturned 9-0. Is the court system so out of whack that they get overturned 9-0? That's a slap to the lower courts. What is it that SCOTUS sees that everyone else can't see?
Once again: there is no 'ban
Once again: there is no 'ban on government support of religion.' A minimal attempt to actually learn something for a change would satisfy.
Perhaps on your planet, that is true
Here on earth, however, the Establishment Clause is a pretty recognized Thing that Exists in the U.S. But like you said, "A minimal attempt to actually learn something for a change would satisfy." You could start here.
Didn't the state already plug
Didn't the state already plug the hole way in advance? I thought it was one of the first things Baker did when he got elected.
A constitutional right to free birth control?
Wow. Just wow.
And I was going to vote for her next year, too. Oh, well.
No, she's not arguing that
She is arguing that despite the worst efforts of Republicans, the ACA is still law and includes measures to ensure Americans can get health coverage. And the law, which, again, is still an actual law, not only contains certain anti-discrimination clauses on its own, it is, of course covered by the equal-protection clause of the Fifth Amendment.
And what that means is that if men get coverage under the ACA for men-specific things (the new regulations don't let employers bar payments for, oh, Viagra or prostate-cancer treatments), then the new regs are a violation of the Fifth Amendment equal-protection clause, because they apply to just one group of people, i.e., women (and note that there are legitimate health reasons for women to take birth control that have nothing to do with preventing pregnancies ).
No, it isn't law.
Not this part. Obama enacted it by executive order.
Does the law explicitly mention birth control?
And as a follow up, are you familiar with the Hobby Lobby decision?
Look, if Massachusetts wants to enshrine birth control coverage, have the General Court write a law and get the Governor to sign it. Then they can handle all the first amendment lawsuits they can handle when they make religious institutions cover things they are morally opposed to. If the federal executive wants to change a regulation, they are within their bounds to do it. Obama did more to violate the first and fifth amendments than Trump would do on this issue.
And if Trump (or Clinton in an alternate universe) wanted to allow employers to offer services that would not cover viagara (a drug developed to control blood pressure) I’d have no problem with that. The difference is that I’ve heard of no religion that is opposed to viagara.
Oral birth control costs at most $50 a month, according to Planned Parenthood. $20 copay is usual for other drugs, including life saving ones. A buck a day. Tops.
It's not really about coverage.
It's about the employer's religious right to not pay for something they don't believe in. If the Obama administration was OK about severing the coverage, the case would never have been brought.
Hobby Lobby was a 5-4 decision that protected the religious rights and beliefs of close family held corporations. It directly pertained to the Religious Freedom Restoration Act. The 'Little Sisters of the Poor' (combined with others) case was a bit different. They were on the hook for about $70 million in fines from the Obama administration over birth control and abortion coverage. Supreme Court Justice Sonia Sotomayor granted a last-minute temporary injunction stopping the government from trying to collect until the case was heard. For those 'religious freedom' types, and that should be all of us, it was a unanimous decision to vacate the lower rulings and send it back for reconsideration, where the possibility of severing the coverages, like dental and vision coverage, could be considered.
There are no religious rights
only religious wrongs.
I deserve to live in a cult free USA - and financially rewarding their [already tax free] existence with allowing them to be discriminatory employers is just too much.
Sure the Supreme Court [narrowly] voted 5-4 in that particular case. But that is because the Supreme Court is made up of human beings, many of whom hold repugnant beliefs. And a different court could just as easily vote 4-5 or 2-7 or 0-9.
And I deserve to live in this
And I deserve to live in this country and not be persecuted for my religion. Now where have I heard that before...
Examples?
In what way are you persecuted today? In the passt Catholics and Jews were persecuted by Protestants in this nation. Are you claiming that you are presently persecuted? How pray tell?
Read black kat's post that I
Read black kat's post that I replied to. Read any religious post here referring to God as a sky fairy. Discrimination is discrimination. Either we resist it all or we resist none. You can't pick and choose which flavors of discrimination are wrong. All discrimination is wrong.
"Discrimination is discrimination"
You seem to not understand the distinction between what you regard as "wrong", and what are your rights in law. "Discrimination" is not illegal as such, nor is expressing the opinion that your Jehovah is a sky fairy. There are specific enumerated rights to be free of certain kinds of discrimination on certain bases; there are no laws against "discrimination".
Er
If you think religious discrimination isn’t illegal, what do you make of Trump’s “Muslim travel ban”? Legal or no?
There are no religious rights
To somebody else's body.
The idea that the employer owns and controls your compensation is bizarre and beyond ridiculous. Healthcare is compensation and employee choices for their own medical care are not the business of the employer any more than it is your employer's business if you use your salary to buy ham.
Neopharisees need to go to hell.
Alas
There are explicit rights defending freedom of religious expression. If someone doesn’t like how a religious group expresses their religion, my best advice is to not for for them.
A hospital...
A hospital is not your church. A public school is not your church. A workplace is not your church. A public accommodation of any kind is not your church. Clear?
Sure
Except that religions open hospitals and schools as part of their mission.
If I can’t get pork as a meal option at Beth Israel Deaconess Hospital of at Brandeis University, will Healy file a lawsuit on my behalf, citing my constitutional right to non-Kosher eating? I mean, she’ll sue to make Stonehill College pay for birth control for its employees.
"There are no religious rights...To somebody else's body."
"There are no religious rights...To somebody else's body."
Absolutely correct.
"The idea that the employer owns and controls your compensation is bizarre and beyond ridiculous. Healthcare is compensation and employee choices for their own medical care are not the business of the employer any more than it is your employer's business if you use your salary to buy ham."
Employer decisions on which health plans for employee are, within specified limits, part of a compensation package offered to employees. The packages are chosen by the employer. You can swing at the pitch or not. The court arguments here are about which parts of an insurance plan are required of employers.
"Neopharisees need to go to hell."
Sure, no problem. Whatever that means...
Who should control your compensation?
The government?
"There are no religious rights...only religious wrongs."
"There are no religious rights...only religious wrongs."
Hey, whatever that is supposed to mean, but the Constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..."
So, I guess there are religious rights, not granted by the government, but rights that come to the people naturally.
"Sure the Supreme Court [narrowly] voted 5-4 in that particular case. But that is because the Supreme Court is made up of human beings, many of whom hold repugnant beliefs. And a different court could just as easily vote 4-5 or 2-7 or 0-9."
Hobby Lobby was 5-4 and was argued on the religious beliefs of the folks that hold their companies in corporations instead of personally, an entirely sane way to hold a company.
Little Sisters of the Poor got an injunction from Justice Sotomayor (a 'wise Latina', appointed by President Obama) because she thought it was important. The Court then went on to find for them not "4-5 or 2-7 or 0-9" but 9-0. In baseball that's called a shutout, in law a spanking.
Yes, I know about Hobby Lobby
That's probably why Healey is also making two other arguments that don't involve the First Amendment - the Fifth Amendment issue and the administrative-law issue.
or free chemotherapy
I call bullshit.
Excuse me? We women PAY for
Excuse me? We women PAY for our health insurance and our medical care.
There are women who take
There are women who take birth control to help manage their anemia. This is morally offensive to some religious people? Wow! Disturbing that this is happening in 2017. Your spiritual beliefs do not outweigh a woman's right to health insurance and medical care!
How about we let just them
How about we let just them get the benefit? That work for you?
Then maybe you ought to call your representative
and advocate for a change in federal law that separates such 'off-label' use from the main thing most people think of when they hear 'birth control pills,' namely contraception.
In fact I think that's not a bad thing to have on the books to specifically counter such nonsense. Beyond that, pay for your own damn condoms and pills and IUDs.
Call who? No Mass representatives support this move
The law is that it needs to be covered, not that anyone can walk into a CVS and be given contraceptives on the Gov't dime. Anyway, most health plans would much rather cover it since The Pill is cheaper then the healthcare one needs when pregnant. It's employers who are forcing their owner's values on their employees which is the biggest problem.
You make an important point
Almost all employers will still cover birth control, which is good. Moreover, if you take a job at a place whose philosophy is stated overtly as being based on Christian ethics (or whatever), you should know what you’re signing up for from the get go. Of course, Obama wanted to wade into this issue, got burnt once and almost got a second hit until Scalia died, and now Trump is cleaning things up.
They let you do that when you're famous
Ah yes. Trump, the man always concerned with woman's reproductive system.
This country has labor laws specifically to prevent employers from taking advantage of their employees. Requirements to offer health insurance and what that health insurance must cover are an extension of this. No employer should have the right to impose any restrictions on their staff when it comes to healthcare.
Not as straight forward as you think
The US has had military conscription and a military draft. They were requirements. Conscription and the draft also had exceptions for those whose religious beliefs or morals precluded military service. It’s that pesky first amendment once again. Funny how that whole “religious expression” thing goes.
Employers cannot prevent employees from using birth control (Griswold) but the government cannot make employers pay for it (Hobby Lobby).
Last I checked
Sex and pregnancy were not a disease and thus shouldn't be "insurable" in the first place.
Insurance is to cover things you don't choose like accidents, death etc. If we decide to provide these services as a society, different discussion, but they shouldn't be "insurable".
Last I checked ...
"Health care" means more than just treating diseases after the fact. But in any case, as has already been mentioned, there are reasons for women to need birth-control pills beyond just preventing pregnancy.
Are you really advocating for removing prenatal and delivery care from health insurance? Because even if you are that cruel, you realize that would just lead to more complications - which I guess would be covered under your brand of insurance - and deaths, right?
Health care is not health insurance
Kind of similar to the broader argument.
Single payer is a payment system, not insurance.
That's the point. You are conflating the two.
You can have all the prenatal and deluvery care you want aa long as you buy insurance for that.
When was health insurance limited to diseases?
I use my health insurance for my annual physical. That is not to treat anything. It is to see if there is anything going on that needs observation. Should I pay the full cost of the visit if nothing is found? Should I pay the full costs of the various blood and urine tests if nothing is found?
Health insurance is as much about using medical science to maintain good health as it is to treat health that is not idea. But illness that is preventable winds up being more expensive. So it makes sense to pay for prevention and thus keep the overall costs down.
Perfect example
We conflate health care with insurance.what you have there is a hybrid system. The way a true insurance system would work is you'd pay for the first $X of services, some of which, like physicals, should be required to keep your insurance in good standing).
Insurance isn't for basic stuff just as your auto insurance doesn't pay for small repairs and diagnostics. It covers things you can't personally afford so you pool.the risk.
Think about it, our system is so convoluted even very intelligent people on this board don't get the distinction between an insurance system and a payment system.
Please explain
What exactly is your experience with health economics and public health practice?
Because anybody with real experience wouldn't be playing the stupid semantics games you are playing here. It is extremely well established that wellness programs - prenatal care, physicals, etc. PAY BACK AT LEAST FOUR TO TEN FOLD IN NOT SPENDING MONEY ON DAMAGED BABIES AND DIABETES AND ASTHMA HOSPITALIZATIONS.
To name a few.
Just go galt already. please.
not semantics at all
I deal with insurance all day long and help people make extremely important decisions about life, health, property, liability and auto insurance every day. Sometimes i tell them they need more, sometimes less. I get paid for my advice, not the insurance.
Our health insurance system is a complete mess because the incentives are completely screwed up in part because unlike most of the above we conflate insurance systems with a payment system.
The incentives, costs and lack of transparency are completely at odds with most insurance because we view insurance as a payment system, not insurance.
Insurance is not for every little office visit. It's for the big stuff. It's not semantics and even smart people like you and Asam don't understans the difference when it comes to health care.
If you DO want a national payment system, more along the lines of Medicaid for all, very very different discussion.
Missing the point by being pedantic with words
Arguing health or medical insurance or coverage if you want are comparable to homeowner's or car insurance is to argue by analogy. The analogy quickly fails. Whatever term you want to use health coverage, health insurance, health payments, the objective is to reduce the cost of medical care to individuals.
You may be right about our system being a messed up system. I agree. But the question here is whether an employer has the right to reject contraception from their health coverage. The Supreme Court said that an employer may. They stated that it may do so on the basis of religious belief. That decision can not morally be limited to health care however. To limit it to health care is to commit a hypocrisy that favors religion in a specific aspect of life; but that is a limitation which does not have legal precedent or legal or philosophical basis. Without an authoritative basis its reasonable to conclude that the 5 justices made a capricious decision based on personal bias.
Worse the Supreme Court however did not define religious belief or what authority establishes a valid religious belief. If I start a religion, get a tax certificate stating the congregation of my religion is recognized, then at what point may legal authorities legally prevent me from doing whatever I want, law or not.
For Protestants nothing in the Protestant bible states that contraception is bad. If Evangelicals want to prove their authoritative interpretation is based some interpretation of Biblical text then what stops them from telling their employees that if they commit Onanism then they are fired? At that point Evangelicals might start lobbying to make any sexual activity, other than what they approve, illegal.
That will be an interesting day.
Nevertheless the owner of a business has no right to impose their religious beliefs on their employees. A business is not a or the person. A business is public entity. When more than one person a business is an organization of people. By the same token one could argue that the business should tell their employees up front that they are expected to follow specific rules concerning sexual activity since sex is the big deal here; but with pseudo religious right behind them they could produce a document that covers all aspects of life under the rubric of religious rights of the employer.
What are the limits to employer's imposing their will, via their religious beliefs, upon employees? If a religious bigot wants to play up again the bs about why God made people who are dark skin can they then declare that they are exempt from anti-discrimination laws?
I'll leave the legal interpretation to SCOTUS
Perhaps Medicaid patients aside, birth control should never be insurable. Insurance is for low probability accidenral things that might befall you, not something you consciously decide to do.
Paying for insurance for a low cost item like birth control is moronic. This is just one example of how screwed up the system is. It's not morality, it's common sense.
Pregnancy is not a matter of health?
There are women whose bodies are not capable of bringing their baby to term without endangering their own life.Do you believe that they should then spend their lives abstinent from sex?
What of the use of the pill to enhance a woman's health to manage their monthly cycles? Does't that qualify as health maintenance? We agree that health insurance pays for medicines that support health maintenance then why would we not pay for contraception?
The statement about health insurance not covering a person for what they consciously decide to do is odd. If a person chooses to work in an environment where there is an acknowledged higher level of danger to their health (police work?), in other words something they consciously decide to do, does that mean they should not have health insurance either?
Legal and moral interpretations however are the responsibility of each citizen. That is part of participatory democracy. The authority that translate to power rests in governmental institutions. But we are responsible for weighing laws, deciding whether a law or right or wrong, and using our knowledge and yes even common sense to make those determinations.
There is one danger however in using common sense. What is common sense to one person might make no sense to another.
Exceptions do not make the rule
There will always be exceptions - and in health complications.
Those of course should be covered (like someone who needs birth control for a medical issue).
Health insurance will be different from auto, which is different from property, which is different from life, which is different from long term care etc. But the basic principle is there's a certain level of personal financial responsibility and you insure above that at a level that might become a burden to you. In health insurance medicaid is an exception for poor people. Medicare for all might be an interim step with very basic universal coverage and supplemental on top of that.
HOWEVER, if you start paying for low cost items like over the counter meds, birth control and physicals, it becomes unsffardable to all. Likewise, if you insure elective surgeries and conditions like pregnancy, you are subsidizing and run the risk of adverse selection again driving up costs.
There's a way to do this well and then there's the way we do it which is what you describe and why we have ridiculously expensive health care costs. It DOESN'T work. Time for a new model.
Low cost items?
Oh my. You are so dim sometimes.
Tell you what: when you get pregnant, we'll talk. I'll buy lunch, even.
Then maybe you ought to butt out
No, maybe you ought to butt out of things that are none of your god damned business. Rather than other people having to jump through hoops to get around your religiously-motivated restrictions on what they may do with their own bodies, how about if we put the burden of proof on you to demonstrate your compelling need to control the lives of others?
What defines Christian belief regarding health or anything else?
Hobby Lobby owners claim that their Christian beliefs require them to not provide any coverage for contraception. What did they base those beliefs upon? Are those beliefs consistent with other logically derived beliefs based on the same religious rules?
The 5 folks in black robes erred when they stated that religious belief allows a private company to be exempt from certain secular laws. They allowed subjective belief to trump law. But subjective belief is secondary to the objectivity of law. Law concerns everyone equally. Claiming religious belief exempts from legal obedience says belief - subjective belief - trumps objective laws that apply to everyone else.
Must religious adherents demonstrate that there is some authority outside of themselves? If not then each person is there own religion. Hence chaos and anarchy.
If some outside authority is required can adherents of a religious belief practice cafeteria obedience to their religious belief? If so then again there is chaos.
In the Christian text there is a clear statement that divorce is not allowed. Did the Supreme Court mean that Hobby Lobby can choose to not hire someone on the basis of marital status? That is illegal discrimination. But Catholics, more consistent than Protestants on this issue, should, by the Court's ruling, be able to deny employment in anything even tangentially related to Catholicism (schools, hospitals, hospices, but also profit making properties, businesses and investments, including monasteries and convents) where secular people are hired. Their religious rights should include the ability to ignore the law banning discrimination on the basis of marital status.
Same for employing or even allowing in their buildings people of other religions and denominations. They should have a right to say that anyone who doesn't obey their religious rules are not allowed on their property.
That would be a kicker where Catholic colleges are concerned.
Or is the Court saying that hypocrisy and personal law making is now the law of the land when religious belief and public practice conflict?
It doesn't matter
"Hobby Lobby owners claim that their Christian beliefs require them to not provide any coverage for contraception. What did they base those beliefs upon? Are those beliefs consistent with other logically derived beliefs based on the same religious rules?"
Religious beliefs aren't necessarily logically derived and yet are covered by the First Amendment.
"The 5 folks in black robes erred when they stated that religious belief allows a private company to be exempt from certain secular laws. They allowed subjective belief to trump law. But subjective belief is secondary to the objectivity of law. Law concerns everyone equally. Claiming religious belief exempts from legal obedience says belief - subjective belief - trumps objective laws that apply to everyone else."
Totally wrong. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..." This applies to the government. The government cannot interfere with your religious beliefs. Look up "Pastafarians" someday.
""Must religious adherents demonstrate that there is some authority outside of themselves?"
Nope.
"If not then each person is there own religion. Hence chaos and anarchy."
Nope. Draftees that declare themselves conscientious objectors have a legal standing to be assigned alternative duty. There are several cases where they went on to be corpsmen, chaplains and medics doing heroic duty.
"In the Christian text there is a clear statement that divorce is not allowed. Did the Supreme Court mean that Hobby Lobby can choose to not hire someone on the basis of marital status? That is illegal discrimination. But Catholics, more consistent than Protestants on this issue, should, by the Court's ruling, be able to deny employment in anything even tangentially related to Catholicism (schools, hospitals, hospices, but also profit making properties, businesses and investments, including monasteries and convents) where secular people are hired. Their religious rights should include the ability to ignore the law banning discrimination on the basis of marital status."
Well, since you brought it up...
https://www.alternet.org/belief/catholic-school-teacher-fired-same-sex-m...
http://www.foxnews.com/story/2008/12/31/teacher-fired-for-marrying-divor...
I report, you decide...
""Same for employing or even allowing in their buildings people of other religions and denominations. They should have a right to say that anyone who doesn't obey their religious rules are not allowed on their property.
That would be a kicker where Catholic colleges are concerned."
I dunno...go call BC and see where they stand on the issue of educating people in a non-discriminate manner. Also, what about Muslims and mosques?
"Or is the Court saying that hypocrisy and personal law making is now the law of the land when religious belief and public practice conflict?"
Nope. This is why cases go to court, to be decided by applicable law. It's a good system. If it doesn't provide you with the results you want, well, I can't help you there.
I'm against birth control.
I'm against birth control. But it's because I'm for poverty, increased crime, more welfare, teen mothers, kids without fathers etc... I love that shit. Did I mention I'm a complete dumbass and I vote republican? Sex is only between a man and a woman or a priest and a 9 year old boy.
Did I mention I'm mad about Benghazi but I don't give a shit about the dozens of people who died in embassy attacks under Bush? I'm a hypocritical loser, so don't be shocked.
Oh noes!
The policy is being reverted back to the dark days of 2011.
Not in Massachusetts it isn't
Because we already had a functioning health-care system, but in much of the rest of the country, yes, we are going back to the dark days of 2011, when people suffered and died for lack of insurance.