Maxim of the Week

“One must not change his purpose to the injury of another.”

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Free Exercise of Religion, Contraception, and Women’s Health Issues, Pt. 1

The controversy created by President Obama’s Administration over whether the Federal government can require religious institutions to provide their employees with insurance plans covering contraceptives has a significant impact upon our Constitutional Republic. The controversy requires the juxtaposition of “rights” created by the government over the right to free exercise of religion as guaranteed by the United States Constitution. In order properly to analyze the controversy in light of this juxtaposition, our first analysis will be to determine whether the Catholic Church’s objection to covering, or providing insurance plans that cover, contraception is a validly held religions belief, warranting constitutional protection.

The constitutional protection of the free exercise of religion is a “fundamental right.” This is an important term to grasp, since the Administration appears to set the stage for the argument that contraception and other women’s health issues fall within this term. In his remarks announcing the so-called “accommodation” for the Catholic Church, President Obama elevates women’s health issues and discusses them on an equal footing with the First Amendment to the Constitution. In so doing, he infers that women’s health issues deserve the same protections as religious liberties. “Fundamental right” is a buzz phrase for attorneys. It means that the courts will apply the highest level of scrutiny—called strict scrutiny—to any alleged interference with that right. For the courts to sustain a law interfering with a “fundamental right,” the law must relate to a “compelling government interest” and must be “narrowly tailored” to achieve the law’s stated intent.

I have not yet seen a detailed discussion examining the Catholic Church’s religious and scientific objections to contraception. There is a plethora of analysis on the federal government’s perceived violation of the Catholic Church’s free exercise of religion, but precious little discussion on why the Church objects to providing or paying for contraception. For lack of better terms, the Church has behavioral and scientific objections to contraception.

The Church’s behavioral objections reflect its application of Biblical teachings relating to sexual activity. The Church takes seriously Biblical dictates requiring Christians to remain sexual pure, establishing the purposes for sexual activity, and promoting the sanctity of marriage. According to the Bible, the purposes for sexual activity are procreation and pleasure. The Bible also permits sexual activity only within the marriage relationship, and any sexual activity outside of marriage is strictly prohibited.

The Church also believes in the sanctity of life. The Bible teaches that life is a gift from God and that only He truly holds the power of life and death. One of man’s roles—and specifically one of the government’s roles—is to protect life at all stages. Life, according to the Church, begins not at birth, but at conception: the moment a sperm and egg unite.

Add the Church’s view on sexual activity with its pro-life views and you will begin to understand its opposition to contraception. Conception is a natural, and Divinely intended, consequence of sexual activity. Contraception removes from sexual activity the natural consequence of pregnancy. In the eyes of the Church, removing this natural consequence promotes promiscuous behavior.

The scientific objection is slightly more sophisticated and requires an explanation into how birth control pills work. Birth control pills use synthetic estrogens and progestins to mimic a woman’s naturally occurring cycle. These synthetic hormones end up confusing a woman’s body, preventing ovulation and enhancing the uterus’s lining. The ultimate result is that birth control pills prevent pregnancy by inhibiting ovulation and preventing fertilized eggs from implanting in the uterus. This latter mechanism of action is also how the Morning-After, or “Plan-B” pill works. Plan-B is a single dose emergency contraceptive containing 15 mg of the progestin Levonorgestrel. This progestin is found in lower doses (usually .15 mg) in birth control pills, such as Seasonale and Seasonique,  and in the birth control device Mirena.

Add the fact that birth control pills prevent a fertilized egg from implanting to the Church’s view that life begins at conception, and you should see the Church’s scientific objection to contraception. In the Church’s eyes, birth control pills do not merely prevent pregnancies; they kill life.

Whether you agree with the Church does not matter. The purpose of this part of the series is to lay the foundation, explaining the factual basis for the Church’s opposition to paying for, or otherwise providing, health insurance plans that cover contraception. The Church’s opposition to contraception is a validly held religious belief. The Department of Health and Human Services and President Obama have created a conflict between the Church, its employees, and the Government. In future articles, we will examine how the courts should analyze and resolve this conflict, on the impact of the Supreme Court’s recent decision in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC on the contraception issue, and the political impact of attempting to define the subsidization of contraception as a fundamental right.

Posted in Constitutional Law, Current Events, First Amendment -- Freedom of Religion, Health Care | Leave a comment

Maxim of the Week

Okay, haven’t done inequality of these is a little while… “Absoluta sententia expositore non indiget.” Translated: “A simple proposition needs no expositor.”

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The Purpose of Law

“The end of law is not to abolish or restrain, but to preserve and enlarge freedom.” ~ John Locke, Second Treatise on Government, Chapter IV

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Why a Strong Military?

File this under the “Founding Fathers hit the nail on the head” category. From Federalist No. 23 by Alexander Hamilton (he who graces the $10 bill).

The principal purposes to be answered by union are these– the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.

The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.

Emphasis Original.

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New Blog Devoted to Improved Brief Writing

An Illinois Appellate Attorney has launched a new blog devoted to improving legal writing quality across the board. And his two tips are excellent starting points for any appellate attorney or appellate attorney want-to-be.

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Make Sure Your Content Is Relevant…

Much of what I do, right now, is in the employment law field. This caution, therefore, hits somewhat close to home. For those of us who like to write and research, always, always make sure you include only relevant content in your filings. According to this story from the American Bar Association, a federal judge reprimanded, more or less, an attorney who used an Opposition to Summary Judgment as a sounding board for some less than relevant case theories. And the Court let the entire world know of its displeasure.

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Maxim of the Week

The practice of adding and annulling laws is a most dangerous one. (“Leges figendi et refigendi consuetudo est periculosissima.”)

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Are Dog “Sniff Tests” of Homes Searches?

The State of Florida recently filed a Petition for Writ of Certiorari with the United States Supreme Court in the case of Jardines v. State of Florida. The Writ comes after the Florida Supreme Court determined that a search of Mr. Jardines’ residences predicated on a “positive” hit from a narcotics dog violated the United States Constitution’s Fourth Amendment prohibition on unreasonable searches and seizures.

First, I believe the Florida Supreme Court decided the issue rightly. Second, the State of Florida’s Petition for Writ of Certiorari raises some serious questions about the limits of police authority. Specifically, can the police gather the probable cause requisite for a search warrant based on nothing more than an anonymous tip and a “positive” hit during a sniff test? Ultimately, the police were at Mr. Jardines residence due to an anonymous tip to a Crime Stoppers hotline, not due to some prolonged investigation.

So, is a “sniff test” a search as defined by the Fourth Amendment? When conducted at a residence where the police have no probable cause beyond a tip, I believe so. Remember, the Fourth Amendment protects the citizen in his person, house, and effects against unreasonable searches….

Posted in Constitutional Law, Criminal law, Fourth Amendment | Leave a comment

Maxim of the Week

Whatever is subject to the authority of a judge is not subject to innovation. (Quicquid judicis auctoritati subjicitur, novitati non subjicitur)

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