Category Archives: rights

Gina “Joe” McCarthy

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…is at it again. Operating carefully in the proverbial dead of night, burying its new rule in the 80,000 page Federal Register and unadorned by any other announcement,

The Environmental Protection Agency has quietly floated a rule claiming authority to bypass the courts and unilaterally garnish paychecks of those accused of violating its rules….

The EPA also has fast-tracked passage of this rule in an effort to get it into effect before anyone knows it’s there. Until it’s applied. The EPA has justified the fast-tracking by claiming, with an absolutely straight face, that this isn’t a “significant regulatory action.”

On top of that, Gina “Joe” doesn’t feel any need to explain herself.

EPA officials did not respond to repeated questions by The Washington Times about why they thought it was necessary to garnish people’s wages.

The explanation she’s reluctant to say out loud, though, clearly is, “Courts? We don’t need no courts! I don’t have to take you into any stinkin’ courts!”

Arrogant in their Failure

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A veteran, a young woman with a son, the mother and veteran the victim of domestic abuse and suffering depression from that abuse, went to the Veterans Affairs office in El Paso seeking help for her depression. A counselor told her she would not be able to see a psychologist: she “looked too nice and put together” for someone depressed.

Of course. How wonderful that the VA can hire folks so skilled that they can diagnose a lack of depression solely on appearance. Still, it’s one way to hold down the wait lists.

The VA has to go, and its budget has to be disbursed to our veterans as vouchers so they can see the doctors of their own choice in medical facilities of their own choice and at times that are actually useful to them.

A…Misunderstanding…on the Supreme Court

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The liberal wing of the Supreme Court is at it again. The three women of the wing are furthering their demand that women generally are entitled to get their contraceptives via OPM, rather than with the women’s own money—apparently, it seems, because these three female Justices think women generally are too helpless to have their own money. These three also are continuing their demand that access to contraceptives must take priority over the religious tenets of the ones they would require to make the provision.

Writing for the dissent to a Supreme Court order advising that Wheaton College, a Christian school in Illinois, need not continue to provide birth control coverage absent filing a form with its insurer asserting its religious objections, Justice Sonia Sotomayor wrote the following:

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation [in Hobby Lobby to justify expanding exemptions from contraceptive coverage to closely held commercial businesses], the court now, as the dissent in Hobby Lobby feared it might, retreats from that position.

Of course, the Court’s opinion created no such reliance, as Justice Sotomayor knows full well. The “religious non-profit exemption” was one of a couple of possible alternatives proffered in the Court’s opinion that illustrated less restrictive means of facilitating women’s ability to obtain contraceptives. The Hobby Lobby ruling included this potential alternative in a part of its discussion of the requirement that a government-generated religious burden (or burden of any sort) be applied through the least restrictive means possible:

The least-restrictive-means standard is exceptionally demanding, see City of Boerne…and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See §§2000bb–1(a), (b)(requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person…is the least restrictive means of furthering [a] compelling governmental interest” (emphasis added)).

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative.

That the opinion went on at greater length about the “religious non-profit exemption” in no way alters its status as one of at least two hypothetically offered alternatives for satisfying the (hypothetically accepted) government interest in providing contraception free to the user. There plainly is no basis to any claim that filing for a “religious non-profit exemption” is the sole means of being…excused…from providing religiously proscribed contraception.

Another aspect that makes the Wheaton matter interesting here, though, is the question of the form itself that Sotomayor insists that Wheaton should be bound to file in order to get that “religious non-profit exemption.”

As Wheaton correctly notes, it’s not who pays for the provision that’s at issue, it’s that Wheaton would be required to sanction the provision by still being required to have contraception coverage done in their name.

“Wheaton believes that authorizing its [insurance administrator] to provide these drugs in Wheaton’s place makes it complicit in grave moral evil,” the college said in its injunction application filed Sunday with the court. “Wheaton can neither provide the mandated coverage nor execute and deliver” forms that prompt others to do so.

This is clear enough to all but the Progressive who cannot distinguish the pecuniary from the moral.

Some Thoughts the Relationship among Individual Liberty and Duty, Spirituality, and Government

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President Calvin Coolidge had a couple, on the day after the 150th anniversary of our Declaration of Independence. He delivered these thoughts and others in a speech in Philadelphia on July 5, 1926, 88 years ago today, now 238 years on.

First, he said this:

Governments do not make ideals, but ideals make governments. This is both historically and logically true. Of course the government can help to sustain ideals and can create institutions through which they can be the better observed, but their source by their very nature is in the people. The people have to bear their own responsibilities. There is no method by which that burden can be shifted to the government.

He pressed the matter with this (keep in mind that this was an era during which Herb Croly, Theodore Roosevelt, and Woodrow Wilson among many others had been, and were, pushing Progressivism):

It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people.

He closed it out with this:

[The Declaration of Independence] is the product of the spiritual insight of the people. We live in an age of science and of abounding accumulation of material things. These did not create our Declaration. Our Declaration created them. The things of the spirit come first. Unless we cling to that, all our material prosperity, overwhelming though it may appear, will turn to a barren scepter in our grasp. If we are to maintain the great heritage which has been bequeathed to us, we must be like minded as the fathers who created it.

What he said.

Some More Thoughts on Hobby Lobby

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I’m riffing here and in a nearby post on The Wall Street Journal Law Blog‘s excerpts of a couple of opinions from this week’s Supreme Court Hobby Lobby decision. That decision can be seen here.

The excerpts in this post are from Justice Samuel Alito’s opinion for the court.

Page 2: Under [the Religious Freedom Restoration Act], a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways Congress or HHS could equally insure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, all FDA-approved contraceptives.

There are a couple of false premises here, or seem to be. I’m having a discussion with an actual lawyer (guess whose argument will prevail…) on whether Justice Alito is accepting the premise of a compelling interest arguendo or in fact. Assuming I’m right (arguendo), then Alito’s argument that government has any interest at all in “insuring that every woman has cost-free access…,” or any interest at all in insuring that any person has cost-free access… is false.

The additional false premise is that government can provide anything for free: those things government mandates be “free” to any individual, in fact, cannot be free—they’re just paid for by someone else. That a thing is free to the nominal…obtainer…is a non sequitur.

Page 3: In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage,

My comments here are tangential to Alito’s purpose in bringing this into the opinion; I’m commenting on the bare remarks. The decision to provide or not to provide “access to all FDA-approved contraceptives” must be a business decision in the freely competitive market for labor, not at all a government (political or judicial) decision.

Regarding the exemption for purely religious organizations (someone other than the religious organization pays for that aspect of a health plan, not the religious organization itself), the argument misses the point entirely. Who pays for the contraceptive coverage is not the problem; the problem is that being required to be a party to the provision at all is the violation of the entity’s religious tenets.

The distinction is made clearer in the next excerpt [emphasis mine]:

Page 32: As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges…may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.

If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual…. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial.

Some argue that the ruling is too narrow because the opinion limits the illegitimacy of the contraceptive mandate to closely help companies with only a few owners. I agree; see my discussion of this in my riff on Justice Ruth Bader Ginsburg’s excerpted opinion nearby.

Where I part company with them is in their tacit conclusion that this is the end of the matter. I think this is just a first step on a short path (if time consuming to traverse) to fully restoring the Free Exercise Clause. The short list of business owners of a closely held company will be expanded to include all owners of companies of any size.