Friday, February 8, 2013

Response To Gallicho 's Commonweal Piece on HHS Contraception Mandate And the Bishops

Grant Gallicho has a piece up that I think perhaps is a tad dismissive too quickly of the Bishop's concerns as the HHS Contraception mandate and for profit folks in his post What bishops want.

Cardinal Dolan also expresses his displeasure with the fact that the revised rule does not address the complaints of for-profit employers who have religious objections to the mandate. They “have no conscience protections at all,” Dolan writes. Matt Boudway covered this question earlier this week. Should any employer be able to opt out of federally established basic health-insurance benefits because of religious objections? Matt writes: ”It would logically lead to a situation they couldn’t possibly wish for. Should an overzealous Jehovah’s Witness be able to get a group plan that excludes coverage for emergency blood transfusions, even if none of his employees are coreligionists?” The bishops tend to treat conscience claims as though they outweigh everything. In fact, conscience claims must be balanced against state interests (whether the contraception mandate advances a legitimate state interest is another question).

Some  thoughts here. First it needs to be stated that it appears the Government position is that for profits have no standing even to have their day in court especially if they are in a corporate form. This includes if they just have a family owned LLC. This is a significant part of the background to the HHS Mandate legislation that is going on.

Second I am not sure the Bishop's response is conscience rights outweigh everything. The Jehovah Witness blood transfusion example is useful  but is in reality limited. I mean logically we can put everything ( abortion , sex change operations , heck maybe in the future Euthanasia ) under " health "  and go but what about blood transfusions. That makes little sense either. I mean the " what about blood transfusions:  argument then means that if we just put it under medicine or health the Government always wins.

Last but not least he misstates the standard. The standard as to the contraception mandate is NOT that if it advances a legitimate state interest. That is a part of the rational basis test which is the lowest level of scrutiny a government must meet. In almost all cases the Government meets that standard.

The contraception mandate comes under the highest form of scrutiny that is STRICT SCRUTINY.
It must be justified by a compelling governmental interest. which generally refers to something necessary or crucial, as opposed to something merely preferred.

The law or policy must be narrowly tailored to achieve that goal or interest.

The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. .

Its a crucial difference.

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