What do you think the ADA (Americans with Disabilities Act) refers to? Do you find that unconstitutional?
The main non-religion based reason why many insurance companies opt to not cover birth control is not connected to its not being life threatening. It is because it is not treating a medical condition. Though it is prescriped by medical personnel, it is not treating a medical problem, but rather helping perfectly healthy women (and men) live a preferred lifestyle. Thus many insurance companies do not see it as being within their mandate.
This is not to take a position on it one way or the other, merely to point out an important distinction.
Viagra is slightly different, in that it does overcome, though not cure, a physical ailment. Actually, there are many insurance companies that, in covering infertility treatments, will only cover the medical treatment for the impairments that cause the infertility. These plans will not cover procedures, such as in vitro fertilization, that cause pregnancy without treating the underlying condition. Viagra would fall into a similar category, and there are many plans that don’t cover it for this reason.
Of course, the insurance companies may make business decisions as well, choosing to cover the less expensive infertility option rather than have the people use (and bill for) the more expensive ones. Whereas in the case of viagra and birth control, people will probably just pay for it themselves. (Though someone pointed out that birth control is a lot cheaper than pregnancy, it is unlikely that someone would reject birth control and choose pregnancy due to the insurance company’s coverage of one and not the other).
Again, none of this has a bearing on what the insurance companies should or shouldn’t do. Just that there are some valid distinctions to be made.
SuaSponte said
“Nit - Congress passed the Civil Rights Act (and I believe you are referred to the Act of 1964), under Commerce Clause of the Constitution, not the 14th Amendment. The rationale was that discrimination by business owners against black customers had a marked effect on interstate commerce.
Starting with the New Deal, Congress has passed most all of its economic and social legislation under the Commerce Clause. The Supremes are starting to knock that back - not sure whether it’s a good idea or not.”
Well, it was the Civil Rights Act of 1968 (Pub. Law 90-284, effective April 11, 1968, now found at 18 U.S.C. Section 245)was the response to the U.S. v. Guest case’s challenge to clear up some of the “public accomodation” ambiguities in the original 1964 Civil Rights Act. This law was specifically designed by the Johnson administration to propose penalites for those who were thwarting civil rights efforts. Its first version was in effect the first “hate crimes” bill, and it resulted in a Senate fillibuster. The compromise version is essentially what is the law today. Agreed, that the legislative history of both the 64 and 68 act called on the commerce power, and the courts have upheld this type of legislative power brokering based on the commerce power, the bottom nit-picking line is this – the 14th amendment is the legal foundation of the civil rights movement. Without the 14th amendment, I don’t think we have civil rights. Without the “appropriate legislation” part of the 14th amendment, we don’t get the Civil Rights legislation of the 1870s or the 1960s, because otherwise “strict construction” of the Constitution does not allow this to happen. Don’t get me wrong, the commerce power is a big part of this. But hey, both the 14th amendment and the commerce clause are both part of the Constitution, eh? We base the statutory authroity for Congress to pass laws which make private citizens liable for violating another’s civil rights on the Constitution. This was Phil’s point in the first place. I was just trying to keep things simple.
Keresnky said:
"Being a strict constructionist I can’t concieve of how anyone can think that the constitution as written allows congress such powers. It may even be that this was (some peoples) intent of the 14th or 15th amendments, but this is not what either of them say.
The applicable portion of the 14th “1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
US citizens do not have constitutionaly granted or implied privileges or immunites that would ensure access to resteraunts, nor is a state depriving a person of life, liberty or property, nor denying any person equal protection under the law by not mandating free access to resteraunts.
The 15th amendment is even less applicable, it only mentions voting.
I do see how the 14th amendments applies other amendments to the states.
It seems to me that under the 14th amendment if you have a law saying that you cannot discriminate based on certain factors, then that law must protect all citizens thus making any discrimination illegal. Including discriminating against naked people (although it would still be fine to call the police to cart them off)
Of course I’m an idealist who will fight that the constitution be interpereted as it is written and not how I think it should be written, including cases where I belive that the way it was written is an affront the the basic principles espoused by our founding fathers."
All I can say is “Eh?”
Section 5 of the 14th amendment states that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Its not hard to strictly construe that.
Another point is the 14th amendment wasn’t drafted by our “founding fathers.” Its an amendment to the document drafted by our founding fathers, which is a part of that document under procedures put in place by our founding fathers so the original document could be changed. You know, because conditions that were in effect at the time of the founding fathers were like, different. Such as, we no longer wanted slavery to be a guaranteed “property” right, like the founding fathers originally wanted it to be.
And what do you mean by “the way it was written is an affront to the basic principles espoused by our founding fathers.” Are you saying the Constitution isn’t written the way the original drafters meant it to be written?
In effect, there can be no private liability for civil rights violation without some nexus with state action. As Sua sponte pointed out, this is usually connected with another express constitutional right, such as the right to travel, or to participate in interstate commerce. If you can link a private person’s discrimination to some state action, under section 5 of the 14th amendment, Congress can regulate it.
For example, private conduct that prevents state officials from giving equal protection or due process my be prohibited by Congress. So even though the privately owned theater or stadium doesn’t want Jews or blacks to participate, these arenas are regulated by the state for safety and a license to operate. If the State licenses a facility that violates the the 14th amendment, there is tacit approval of the discriminatory practice. A much less clear case would be a purely private social club with no state license or regulation.
You can ask anyone who knows me on this board. I’m as conservative a guy as there is around these parts. But I believe the Constituion allows for the government to enforce fundamental rights in the arena of purely private conduct.
The OP poses an issue that is much more complex, because there are different rights in apparent conflict. One involves the murky and yet to be fully reconized obligation of the state to provide healthcare to its citizens. The other involves the well established right of free excercise of religion.
Are there any health insurance plans which do not cover birth on the grounds that it is not a medical ailment but rather an elective situation?
Argh! Ok, I’ll try to state this again as clearly as possible. The constitution does not specifically guarantee a right for any individual (not acting as an agent of the governmnet) to have access to any privatly owned property. As you say different laws may in effect guarantee such rights, but their is a big difference between a law and the constitution!
As for the ADA being on constitutional, after rereading a large chunk of the constitution I am of the opinion that yes, it is unconstitutional. The 10th amendment reserves all powers not delegated to congress, nor prohibited to the states, for the states and/or the people. I see nothing the in the constitution that directly give congress the power to regluate the employment of disabled citizens, nor do I see how this regulation is both neccesary and proper for executing any delegated power. I don’t think interstate comerce (the catch-all congressional power) enters into this and, as I’ll be adressing in another post to follow this one, I don’t see how the 14th amendment does either.
I’m not really argueing that this is the way that the constitution should be written, but because it is written that way, that is how is should be read. As I’ve said before I see numerous faults in the constitution, and I think it should be scrapped and rewritten.
Kerinsky
That’s not the part that I think people losely construe.
To interperet (I really hate using that word when dealing with the constitution) this section you must look at what specifically the provisions of the amendment are. The part relevent to our discussion is “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Please tell me how any portion of this gives congress the authority to pass a law mandating minority acess to places of public accomidation, or fairness to minorities in hiring practices.
That quote didn’t deal with the 14th amendment, it was refering to myself as an idealist. The best way I can illustrate this would be by saying the in 1800 I would have argued that slavery was permited (and in fact protected) by the constitution, even though this was an affront to the principles of liberty that were championed by many of our founding fathers. I would not have argued that this is what the constitution should say, only that this was what it did say. Likewise I’m not specifically argueing that their should not be legaly mandated acces for all citizens to restaurants, but rather that the constitution does not grant such power.
All property is regulated by the government for ownership,d saftey and in most cases zoning. We have public nuisance laws, height restrictions on building, fire codes and inumerable other government, thus ANY private action can be linked to some state action. I couldn’t keep black people out of my house unless the government recognized my ownership of the house, does that mean that I can’t keep black people out of my house if I want
I really don’t see how the state’s obligation to provide free healthcare issues into this. (to nitpick, DC isn’t even (really) a state) DC is trying to tell employers and insurance companies what contracts they are allowed to enter into, the DC isn’t do something like telling hospitals they have to provide birth control for free (I’m asuming you’re talking about the mandated free emergency health care here.)
Kerinsky
I doubt it, there’s a high chance of “complications” in actually giving birth, many of which are potentialy deadly, to the mother and child. The mortality rate for mothers and children jumps a lot without health care, and that is REALLY bad for buisness, which is what the insurance companies care about. If you really want to get nitpicky, I think most policies cover children as well, and birth is NOT an elective sitution for the baby, so they’d at least have to have doctors their to help the baby and after birth they could promptly kick the mother out 
I know I wouldn’t have chosen to be born if I knew what a freak I was going to be…
Kerinsky
Kerinsky, Congress passed the laws basically to repeal all laws and policies that violate the 1st, 5th, 6th, 14th and 15th amendments, with certain exceptions. They went around and have done this, so that Courts don’t have go through the time-consuming process of looking at and striking down every single Jim Crow law and such. The remedies was done quicker with one series of federal legislation, the Equal Rigths Act and the Voting Rights Act. It was done to prevent the recalcitrant state legislators from passing more discriminatory laws and policies.
Notice how receiving health care has become synonomous with having health insurance. It never occurs to anyone to wait until they can afford to pay for the hospital stay themselves before having a baby. Insurance is supposed to be for recovering costs incurred from a mishap, which a person naturally tries to avoid. You wouldn’t expect collision coverage on a car you’ve entered in a demolition derby, would you?
I guess I’m playing devil’s advocate a little, since I don’t realistically expect any changes, but it does seem that emotionalism has overruled the traditional logic of insurance. However, as a single male, I’m curious to know if my premiums are truly reflective of the risks to myself or if I’m subsidizing reproductive-oriented services for females. When you apply for health insurnace, you have to reveal if you’re a smoker and promise not to go skydiving, etc. But one’s gender, sexual habits, and indeed, attitudes on abortion, can significantly affect one’s “risks” of being hospitalized.
Right, the Jim Crow laws were unconstitutional after the 14th amendment because citizens have the privilege to vote. Thus congress can pass laws regarding states attempts to discriminate in voting practices. The courts thinking seems to be that as a citizen you have a privilege to access of all places of public accomidation. I do not see where in the constitution such a privilege is implied (perhaps it’s a brittish common law issue?) and 14th amendment protection for this privilege is NOT consistent. If you have a right to access of places of public accomidation as a citizen, then under the 14th amendment no state can make or enforce a law infringing on that privilege, which would include allowing a restaurant not to serve you if you aren’t wearing shirt and shoes. The 14th amendment does not say that states are allowed to enforce laws that will abridge your privilege as a citzen as long as such abridgment is not discriminetory (i.e. nobody gets served w/o shirt and shoes, versus only blacks don’t get served w/o shirt and shoes.) The due process of law clause can’t apply here because if it did then the constitution would be saying that (paraphrased) “no state shall make or enforce any law that abridges a citizens privileges without due process of law” Dosn’t make sense, no law can legaly be enforced without due process of law, by defenition.
Kerinsky
Public accomodation is where a lot commerce and transactions are known to be made. If you bar a citizen from such accomodations, then you bar the person from commerce, which is unconstitutional.
It’s not illegal or unconstitutional to bar a person from commerce. The constitution says “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Refusing to allow a black person or a jew into a movie theater or restaraunt is not interfering with interstate commerce, thus congress does not have the power (under the interstate commerce clause) to regulate it.
Kerinsky
There is no forcing of their views on anyone else. If you don’t want to work for a Catholic company don’t. You will have exercised your right to not work for someone who does not provide birth control. By the way, what is a Catholic company? Outside of the Church itself I can’t think of too many other Catholic companies.
It is funny how in this country everyone is entitled to an opinion unless that view is politically incorrect or worse yet Catholic in nature. At least the Church didn’t donate money to Bob Packwood like NOW did…
I would be very sympathetic to the Church’s position if it was simply a matter of exempting coverage for employees directly involved in religious work- such as parish office workers, etc.
However, as one of the early posts mentioned, there have been a number of cases where Catholic hospitals have acquired secular ones. Those hospitals have longterm employees with all sorts of religious affiliations. While several legitimate questions have been raised regarding whether any employers at all should be mandated to provide the coverage- if the the coverage is mandated for everyone else, wouldn’t it violate the equal protection clause of the [14?] amendment to say these employees do not receive this particular “protection” merely because a Catholic organization took over their place of employment?
quote:
It’s not illegal or unconstitutional to bar a person from commerce. The constitution says “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Refusing to allow a black person or a jew into a movie theater or restaraunt is not interfering with interstate commerce, thus congress does not have the power (under the interstate commerce clause) to regulate it.
reply:
The movie theater is showing a film from a studio based in another state. The theater has to give money to shareholders who live in another state or country. Those two reasons alone make the movie theater interstate commerce, which can be regulated by Congress.
The women successfully argued for admissions into Jaycees and the Elks for precisely the reason I mentioned: that barring a group bars them from business transactions that would be otherwise public.