Friday, February 10, 2012

CON LAW EXAM

You won’t read about this in the New York Times, or even in the Detroit News.

And don’t bother checking with Snopes. It’s a just a hypothetical question, but I have no doubt that this story or some version of it will show up in the final examinations of Constitutional Law classes in law schools across America:

Mustashfa Islaam is a seven hundred bed full service hospital in Dearborn, Michigan. Organized as a non-profit corporation, its thirteen member Board of Directors consists entirely Muslim doctors, Elders of the local Mosque and Muslim businessmen.

In addition to the physicians who practice there, Mustashfa Islaam employs 1,123 people in various capacities including nurses, aides, therapists, clerks, chefs, receptionists, orderlies and administrators. About 18 percent of these employees are not Muslims. Fifty-nine percent regularly or occasionally consume alcoholic beverages. Roughly ten percent of the non-Muslim employees and three percent of the Muslim employees use marijuana as a recreational substance.

In 2012, as authorized by the Affordable Health Care Act, Kathleen Sebelius, Secretary of Health and Human Services, promulgated regulations with respect to the coverage which employers would be required to provide in all qualified employee health care plans.

Among the specific coverages mandated by HHS were alcohol, when prescribed for medicinal purposes and medical marijuana. The regulations required that such services be made available without any co-pay to all employees.

The Holy Quraan states: "They ask Thee concerning Wine and Gambling, Say: In them is great sin, and some profit, for men; but the sin is greater than the profit." (Surah Al-Baqarah:219)

The Quraan further states in Surah Al-Maaidah verse 90: "O Ye who believe! Intoxicants and Gambling, Sacrificing to Stones, and (divination by) Arrows, are an abomination, of Satan's handiwork; Keep away from such, that Ye may prosper."

Umme Salmah narrates that the Messenger of Allah prohibited every intoxicant and Mufattir (anything which excites and irritates the mind, body and heart.)

Islaamic Mullahs and Imams in the United States are generally in agreement that the proper interpretation of these passages is that consumption of alcohol or use of recreational drugs is forbidden by Allah and is grievously sinful.

Health insurance carriers calculate premiums based upon assessment of the risks associated with their policies. Entitlement to health care benefits is contingent upon future injuries, illnesses and health care needs. The financial benefit of health insurance as against paying for one’s health care as the needs arise, depends upon the occurrence or non-occurrence of unknown future events and conditions.

A narrow majority of the Mullahs and Imams in the United States are of the opinion that insurance is a form of gambling and therefore anathema to Islaamic believers.

Ninety-two percent of the hospital’s employees own automobiles, and as required by state law, carry liability insurance on their vehicles. Seventy-one percent have some form of life insurance.

The First Amendment to the Constitution of the United States provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

On February 8, 2012, Mustashfa Islaam’s Board of Directors voted unanimously to oppose the mandate of the Department of Health and Human Services, on two grounds: First, that it prohibits the free exercise of their religion by requiring the hospital to enable its employees to violate the tenets of the Muslim faith without expense, and Second, that by forcing the hospital to tolerate and even encourage its employees to violate their religious beliefs, the Congress has made a law respecting the establishment of religion, by approving and encouraging activities regarded as sinful in Islaamic theology, in effect legislating and mandating a different standard of morality than that which is recognized and observed by Muslims.

Counsel for the hospital will soon institute litigation in the Federal District Court for the Eastern District of Michigan, challenging the Sebelius mandate.

Discuss and decide the case.

If you decide in favor of the Plaintiff’s, would a different result be justified if the cost of the coverages objected to were to be eliminated from the calculation of the health insurance premium?

2 comments:

  1. The courts have repeatedly established that a minority of even one person, such as an atheist can establish religious policy the matter is quite clear. The 18 per cent referred to in the example will have more sway than the majority. It is this small minority who are not Muslim who do not practice the religion in question to who those in the majority in this instance, the Muslim community or employees must yield on this particular issue.

    Further, as already advocated by the government but not yet fully determined, the government has a perfect right to instruct citizens of the United States to purchase insurance as prescribed by the government under current health insurance regulation or under regulations which will come into effect.

    Finally, under the equal protection doctrine not mentioned in the above example. The courts have many times ruled against the Christian religion as has been cited in this column and many other sources. In order to satisfy this well established doctrine of prejudice against a specific religion and not be in violation of the court's authority to so discriminate, the court will be bound to also discriminate against the Muslim religion so as not to violate the 14th Amendment's provisions as interpreted by the court.

    Now were it not for the fact the insurance is now mandated by the government, the court could simply avoid the entire issue and note in a simple one page decision that while the services are provided, it remains the option of each individual whether to accept them at all. In such a manner therefore all parts of the Constitution are satisfied. The individual in question retains his individual right to accept or reject the objectionable issue in question thus preserving his religious rights. The hospital has its insurance of which it has no conflict in as it is not involved in controlling the religious rights of citizens which it is now attempting to do by inserting its beliefs for those of the individuals and therefore does not raise any questions regarding religious freedoms of corporations and the government is also satisfied in that its insurance is available but there is no conflict as it is decided by the individual as it should be.

    In short, the proper approach is let the people decide, not the corporation nor the government and the court should rule according.

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  2. I believe SCOTUS has decided that the insurance "mandate" is not a mandate at all, but merely a tax on people without insurance.

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