Walker Hints He’d Appoint Author Of Anti-Birth Control Opinion To Supreme Court If Elected President: Speaking late Friday morning at a conference hosted by the
conservative Federalist Society, Wisconsin Gov. Scott Walker (R) strongly suggested that, if he’s elected president, he will appoint the author of a recent opinion restricting women’s access to birth control to the Supreme Court of the United States … lavishing praise on Judge Diane Sykes … a conservative member of the United States Court of Appeals for the Seventh Circuit, (who) authored an opinion last week that SCOTUSBlog’s Lyle Denniston described as “the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law.”
Sykes isn't the only one. Judges across the country are saying a company has a right to deny access to the pill, unless it’s used for some other reason. Just tell the boss why. Uncomfortable? Yes. Do companies have such rights? We'll see.
But wouldn't telling your employer be a privacy violation under HIPAA? What other medical decision can employers eventually restrict once a contraception ban is successful?
First and foremost: It shreds federal and state laws protecting religious rights, putting the religious beliefs of your employer/company over other Americans.
Or how about non-contraceptive use: 14% of pill users—1.5 million women—rely on them exclusively for non-contraceptive purposes. Reducing cramps or menstrual pain (31%); menstrual regulation, which for some women may help prevent migraines and other painful “side effects” of menstruation (28%); treatment of acne (14%); and treatment of endometriosis (4%).
Oddly, the idea that government granted entities like corporations have religious rights is catching on, bringing out those conservative activist judges hell bent on manipulating our laws:
Three federal appeals courts have held that religious employers may deny birth control coverage to their employees, while two others have ruled to the contrary. The judges in these cases have voted largely, although not entirely, along party lines.
The Sykes court wrote: “We hold that the plaintiffs—the business owners and their companies—may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religious-exercise rights. Two legal questions are contested: (1) is a secular, for-profit corporation a “person” under RFRA (Religious Freedom Restoration Act); and(2) does the contraception mandate substantially burden the religious-exercise rights of any of the plaintiffs, individual or corporate? If the answer to these questions is “yes,” the government must discharge its burden of justifying the mandate under strict scrutiny. We conclude as follows: The corporate plaintiffs are “persons” under RFRA and may invoke the statute’s protections; the contraception mandate substantially burdens the religious-exercise rights of all of the plaintiffs; and the government has not carried its burden under strict scrutiny.
I would argue that the mandate does not “substantially” injure anyone, since they’re not forced to obtain contraception.
1. For-Profit Corporations as RFRA “Persons” RFRA’s general rule prohibits the federal government from placing substantial burdens on “a person’s exercise of religion” RFRA does not define “person.” This brings the Dictionary Act into play. The definition there expressly includes corporations. “In determining the meaning of any Act of Congress, unless the context indicates otherwise[,] … the word ‘person’ … include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals … .” 1 U.S.C. § 1 (emphasis added).
It's odd constitutional purist would resort to the "Dictionary Act" for their argument, since definitions change all the time:
The editor at large of the Oxford English Dictionary noted, “I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom,” adding, “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”
Dictionaries nevertheless rank relatively low on my list because (1) they are just as susceptible to abuse as traditional sources of legislative history; (2) they are not written by or for a legal audience; and (3) the meaning of words change over time, meaning definitions plucked from a different time period than the one in which the relevant statute was drafted do not accurately reflect the intended meaning of that term.
The Sykes Opinion:
"On this understanding of substantial burden, there can be little doubt that the contraception mandate imposes a s burden on the plaintiffs’ religious exercise. K & L Contractors and Grote Industries must pay $100 per day per employee if they do not include coverage for contraception and sterilization in their employee health-care plans.
But that’s a burden they put on themselves.
The government takes a different tack on this question, arguing that the mandate’s burden on religious exercise is insubstantial because an employee’s decision to use her insurance coverage to purchase contraception or sterilization services “cannot be attributed to” the Kortes or Grotes. In a different twist on the same argument, the government also insists that any burden on the plaintiffs’ religious exercise is too “attenuated” to count as “substantial” because the provision of contraception coverage is several steps removed from an employee’s independent decision to use contraception. For support the government relies on Zelman v. Simmons-Harris, 536 U.S. 639 (2002), and Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000). Neither case is relevant here.