Law News and Tips
Fred Vilbig © 2019
Growing old is tough. Your body changes a lot, and you can’t do some of the things you used to do. Over time, you lose more and more of those abilities.You eventually get to the point where it is unsafe to drive. Giving up those keys – that source of independence – is really tough for most people, but after one or two accidents, we can be persuaded. Keeping house becomes a real chore. Eventually even cooking becomes too much. I’ve had a number of clients who we discovered were living on cereal and ice cream. Not the best of diets.
And then there are all of the health issues. America is kind of pill crazy. If something ails you, we have a pill for that. And that pill has side effects, so you need a pill for that. It’s like a never ending cycle. It seems that the older we get, the more we become like a chemistry experiment – a little of this and a little of that and we hope that the test tube doesn’t explode or catch on fire. And something as simple as knowing what pills to take when becomes a real challenge.
Most people try to stay in their homes for as long as they can. It’s familiar. There are no strangers around. We at least have a sense of independence.Sometimes people try to stay at home by bringing in a caregiver. That can be expensive, but so are nursing facilities. It’s a possibility, so people may want to explore it.
But in the end, the time comes when it’s time. It’s time to move into assisted living, if not even skilled nursing care. And that poses a whole new set of questions.
In my job, I’ve been to a lot of retirement homes and nursing facilities. To be honest with you, some are absolutely horrible. The smell, the lack of attention to the residents, and the attitude of the “caregivers” reminds me of scenes from Dante’s Inferno. But then other facilities are wonderful. The staff is caring and attentive, the food is good, and the place smells clean and even healthy.
So if you’re the person having to put mom or dad in some kind of facility, how are you to decide? First of all, what are you looking for and what questions should you even ask? When you visit the facility, you will certainly be given the grand tour, and the food will be fine. But there is an overabundance of facilities (and their building more), and they need bodies in those beds. It’s hard to ferret out the truth.
I recently had coffee with Erin. She represents a company by the name of Senior Care Authority of St. Louis. Erin’s company (and probably others) is constantly visiting facilities, asking the kinds of questions we should be asking but don’t even know to ask. Since it’s her job, she takes the time to do all of that stuff. And it does take a lot of time. Most of us have regular jobs, and our only free time is our evenings and weekends. I found a lot of times that no one is even available to answer my questions when I am available. A company like Erin’s can help with all of that.
Yes, growing old is tough. But we hope that we can find care and compassion at that time in our lives. It’s good to know who’s in the know about something as important as this.
With the Fourth of July upon us, it seems fitting to say something about the Declaration of Independence. Although people talk about it, I really
wonder how many know what it says. People have some vague idea what’s in the Bill of Rights, and maybe even something about the Constitution,
but the Declaration of Independence is kind of the forgotten document. It’s basically a list of grievances against the King of England.
Many of us have probably heard the opening of the second paragraph: “We hold these truths to be self-evident, that all men are created equal….” During the 1850s, many Southern politicians denounced the Declaration for that very phrase. They argued that it should be discarded. One even called that phrase in particular a “self-evident lie.”
Abraham Lincoln took another view of the Declaration. He felt that it was the lens through which all of our other governing documents – the Constitution and the Bill of Rights – should be viewed. It is as if those later documents were just a continuation or elaboration on the ideas set out in the Declaration.
I think that the first paragraph of the Declaration is just as important as any other section, and maybe even more so for our times. In it, Jefferson wrote, and the Second Continental Congress affirmed, that our right to separate from England and exist as a separate nation was based on “the Laws of Nature and of Nature’s God….”
Freedom is not licensed to do whatever we want. We are not “free” to kill, to steal, to harm others, or to drive 100 miles an hour in a neighborhood. Our freedom has limits.
According to the Founding Fathers, our freedom is based on natural law, which is universal – it applies equally to all people. These truths are not true for some people, but not all. These truths are true for all or we have no reasonable basis for our freedom. These truths are not subject to the vicissitudes of swiftly changing public opinion.
Yesterday was Bastille Day. Many people say that this is the French “Fourth of July.” I guess you could look at it that way, but the French Revolution was not much like the American Revolution.
The Bastille was a French prison. Many, but by no means even a majority, of the prisoners were political prisoners. The French peasantry stormed the prison, set all the prisoners free, and started a very dark period of French history.
First, the French monarchy was abolished. Power was shifted to its somewhat democratic National Assembly. Then, based on ideas of “rationalism,” the clergy were all required to swear allegiance to the government. They became government employees, and all Church property was confiscated. “We’re from the government, and we’re here to help you.”
Then began the Reign of Terror. People who were deemed to be “enemies of the revolution” were executed. Tens of thousands were killed, many by the “National Razor,” the guillotine. The clergy who refused to swear an oath to the Revolution were many times put on barges in French harbors where they were left to die. A play that was recently produced dealt with the Carmelite nuns of Compeigne who were executed by the guillotine for their refusal to swear the oath. Political intrigue was rampant, so most people just hoped they didn’t get noticed.
One of the leaders during the Reign of Terror was a lawyer (wouldn’t you know it?) by the name of Maximilian Robespierre. Robespierre was brilliant, dedicated to the “cause,” and ruthless. But the revolution even caught up with him, and within two years, he himself was put to death also by the guillotine.
Both civil and international wars appear to have been the result of the Revolution. In this environment, it seems only natural that a brilliant general would rise in leadership. His name was Napoleon, and he took over as the “Emperor.”
So it looks as if the French Revolution to overthrow the monarchy eventually led to a new monarchy. It should be noted that after the defeat of Napoleon at Waterloo, a French Republic was established. But it was a long time coming.
As you can see, the French Revolution was fundamentally different from the American Revolution. The one similarity was that they both threw off the yoke of a monarchy. But whereas the American Revolution proceeded without bloodshed to the formation of a national, republican government, the French Revolution initially resulted in a brutal and repressive dictatorship of terror. The freedoms of religion, speech, press, and even assembly were greatly curtailed either officially or through the Terror. Then came the empire of Napoleon, and that is another story.
I know this is kind of dark, but I think it is good to reflect on how fortunate we are to live in America which is the result of a very unique revolution, one that promoted freedom rather than suppressing it.
But it’s also important to note that there are no guarantees of our freedoms. Vigilance against encroachment on our freedoms by the government is critical and really constant.
I’m just glad I didn’t live in France at that time. What about you?
On June 30, 2014, the US Supreme Court issued its much-anticipated decision in the case of Burwell v. Hobby Lobby Stores, Inc. This case dealt with
the conflict between what is called the HHS Mandate of the Affordable Care Act (otherwise known as “Obama Care”), and a business owner’s constitutional
right to the Free Exercise of Religion “guaranteed” by the First Amendment.
The government had argued that the Free Exercise Clause did not apply to corporations, but only to individuals. Among other things, the Solicitor General argued that it did not apply to the way you conducted your business. In her dissent, Justice Ginsburg argued that allowing business to opt out of the HHS Mandate on the pretense of “sincerely held religious beliefs” would frustrate the “constitutional” protection of a woman’s right to “control their reproductive lives.” She argued that birth control, including abortion inducing chemicals and devices at issue in this case, advanced a “compelling governmental interest”, and that trumped a person’s right to the exercise of their religious faith through the corporate form of doing business. She felt the protecting religious liberty would just be too difficult for the courts to do on a case-by-case basis.
Gratefully, the majority (albeit slim) disagreed. They held that when a business owner elects to do business in a corporate form, they do not check their faith and religious practices at the door. They found that “Protecting the free – exercise rights of closely held corporations, protects the religious liberty of the humans who own and control them.”
The Supreme Court’s ruling basically held three things:
1.The Religious Freedom Restoration Act (that was passed by Congress after the disasterous Smith case in 1990) protects the rights of owners through for – profit corporation;
2.HHS’s contraceptive mandate substantially burdens the exercise of religion; and
3.assuming that guaranteeing cost – free access to the four challenged contraceptive methods is a compelling governmental interest, HHS failed to prove that the mandate is the least restrictive means of achieving its “compelling interest.”
So what does the Hobby Lobby decision mean for faithful Christian business owners? Justice Alito, who delivered the opinion of the Court specifically stated that this decision does not mean that corporations owned solely by individuals religiously opposed to abortifacient contraceptives are not subject to the Affordable Care Act. They are just exempt from the offending portion of the HHS Mandate.
The question is a little more complicated for Catholic business owners who may be religiously opposed to any contraceptives. That is a broader objection than what the court considered in Hobby Lobby which involved evangelical Christian owners. However, I believe the reasoning would be the same for Catholic business owners.
The issue, of course, may come down to proving the religious objection. In Hobby Lobby, Justice Alito extensively discussed the actions the company had taken to institutionalize its Christian beliefs and practices. Business owners may want to give some thought to adopting policies and practices consistent with their beliefs.
One of the other points that Justice Alito discussed in his opinion was the “accommodation” that the Department of Health and Human Services afforded to religious nonprofits. That “accommodation” provides that religious nonprofits do not have to directly provide contraceptive chemicals and devices under their plans. Rather, the insurance companies are required to independently provide those chemicals and devices.
It should be noted that the question of whether this “accommodation” is adequate was not before the court in the Hobby Lobby case. That issue will come before the court in its next term, which will end in June 2015. In that case, the religious nonprofits are pointing out that it is absurd to think that insurance companies will voluntarily, without compensation, provide contraceptive chemicals and devices. They argue that the insurance companies will in fact collect enough revenue to pay for these chemicals and devices, albeit indirectly. In addition, those organizations believe that even this “accommodation” involves them complicity in a grave moral error. We will have to stay tuned to see how the Court rules on that issue.