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THE XAVIER UNDERGRADUATE LAW REVIEW VOLUME I - ISSUE I - FALL 2013

EDITOR-IN-CHIEF Robert Park '15

EXECUTIVE EDITOR Annie Szendrey '16

ASSISTANT EXECUTIVE EDITORS: Andrew Koch '15 Toyan Harper Jr. '15 Juan Martir '15

PUBLISHER Mark Anliker '16

MEDIA AND COMMUNICATIONS MANAGER Rebecca Hollis '16

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MISSION STATEMENT The Xavier Undergraduate Law Review was established to provide a platform for scholarly discussion pertaining to the legal field and public policy. XULR allows all students, regardless of background, an opportunity to present their argument on historical and current issues of legal and social interest in a civil and equal manner. In the Jesuit spirit, the Review will publish and share exceptional student work that will help inspire “men and women for others”. To accomplish this, it is imperative we:

i) Provide resources and guidance for all undergraduate students, Xavier or non-Xavier students, who wish to express their views in a scholarly outlet that will educate the community. ii) Be a positive organization that works through collaboration, not competition. The editorial process will help all students realize their ideas in writing to the fullest extent. iii) Encourage submissions of any scholarly work that pertains to the legal field or public policy. There are a plethora of subjects that pertain to the legal field such as economics, history, medicine, political science, etc. that provide succinct scholarly debate. iv) Uphold the spirit of Xavier University, “Men and Women for Others.”

SUBMISSIONS Submissions of any articles to the Xavier Undergraduate Law Review must be: i) Original ii) Scholarly iii) Included with a title and author biography (including name and college)

For any inquiries, visit our website at: www.xulr.org and check out the submission form for questions, requests, or submissions at: www.xulr.org/submit.html

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EDITOR’S NOTE Dear Reader, After thoroughly reviewing and reading submissions from college students from different institutions around the country, the editorial board has decided to publish three outstanding collegiate articles and a segment by the Director of Communications and Public Policy for the ACLU of Ohio, Mike Brickner. This issue begins with Chris Green’s “The Hit: Why the NFL’s Age Requirement is Anticompetitive.” His paper analyzes the NFL’s age requirement and why it is anticompetitive, barring able individuals from the workforce due to age. In “Lawful Advertising: Corporate Advertising and its Legal Obligation to the Truth” Andrew Koch examines the legal obligations businesses have in telling the truth in advertising, citing federal guidelines and case law. In her paper, “Can Religiously Affiliated Businesses be Required to Carry Healthcare Packages that Include Contraceptives,” Annie Szendrey analyzes whether businesses must follow all requirements of the Affordable Care Act, even if some of those requirements potentially infringes on first amendment rights to religion. Mike Brickner’s segment on Ohio’s capital punishment law is the last article of the issue, which motions for a change in the death penalty system. The first issue of the Xavier Undergraduate Law Review has been a rewarding and enriching experience for the editorial board and we hope you enjoy reading the selected articles.

Sincerely, Robert Park Editor-in-Chief

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TABLE OF CONTENTS: Student Articles: I.

THE HIT: WHY THE NFL’S AGE REQUIREMENT IS ANTICOMPETITIVE Chris Green……………………………………………………………………….....7

II.

Lawful Advertising: Corporate Advertising and its Legal Obligation to the Truth Andrew Koch………………………………………………………………………17

III.

Can Religiously Affiliated Businesses be Required to Carry Healthcare Packages that Include Contraceptives? Annie Szendrey…………………………………………………………….……...23

Guest Segment I.

Shortage of Execution Drug Allows Ohio to Step Back Mike Brickner…………………………………………………………………….30

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STUDENT ARTICLES

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THE HIT: WHY THE NFL’S AGE REQUIREMENT IS ANTICOMPETITIVE

Chris Green The Ohio State University

INTRODUCTION

New Year’s Day 2013, University of South Carolina defensive end Jadeveon Clowney gave the football world a highlight that will be played for the next decade. Clowney was a consensus All-American in 2012 and finished 6th in the Heisman voting, awarded to college football’s most outstanding player. In his short career at South Carolina, two years to be exact, Clowney has racked up 90 total tackles, one-third of which have been for losing yardage, 21 sacks, and 8 forced fumbles.1 Many NFL scouts and general managers rave over his talent, not to mention his 6-foot-6, 256 pound stature, the prototypical NFL defensive end. One GM was quoted saying if Clowney were allowed to enter the 2013 NFL draft, “He’d go number 1 right now, no later than two. He’s an absolute freak.”2 The only thing keeping Clowney from earning well-deserved millions of dollars is a rule requiring a player to be three full seasons removed from high school graduation before being eligible for the NFL draft. The reasoning behind the rule remains much of a mystery although many suspect it has to do with the violent nature of professional football. It is argued that players need the three years in college to become physically and mentally mature enough to handle the rigors of the NFL. I cannot speak for the mental maturity of Mr. Clowney, but watching his highlights, especially “the hit”, he seems to be a man playing a boys game. The law in question has been challenged before, most notably in 2004 by The Ohio State University running back Maurice Clarett. Details of this case will be discussed at length later in this review, however the decision of the court was to deny Clarett entry into the draft due to a “non-statutory labor exemption.” Clarett claimed antitrust injury in this case, however, the court ruled that the NFL and their players association3 are subject to antitrust exemption. Therefore, the NFL is free from antitrust scrutiny and Clarett’s complaint simply does not apply. This was a 1

From sports-reference.com, looking at Clowney’s career stats. http://www.sportsreference.com/cfb/players/jadeveon-clowney-1.html 2

Taken from Yahoo! Sports article “Jadeveon Clowney should lawyer up, challenge nonsensical ‘threeyears-out’ rule” by Michael Silver. This is a direct quote from a general manager in the NFL. 3

For our purposes the NFL player’s association will be referred to as the NFLPA from now on.

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convenient way for the court and the NFL to side step the real issue at hand; the age requirement for the NFL draft is simply unfair. What Clowney can learn from the Clarett case is that if he were to file suit with the NFL he should do so using labor law, rather than antitrust law. The NFL is restricting players who are clearly ready to make the leap, simply because of their age. Clowney should not be denied his right to earn a living and be forced to return to college for one more season risking a possible career-ending injury. Some suggest Clowney sit out his junior season at South Carolina to guarantee his health, especially after reports surfaced of a possible neck sprain, requiring him to miss the rest of spring practice.4 Head, neck and back injuries are often career threatening and concern over Clowney’s neck has refueled the debate over NFL age restrictions and eligibility requirements.

I. THE NFL RULE REGARDING DRAFT ELIGIBILITY

The first rule barring entry into the NFL was established in 1925, a player must be 4 years removed from high school before entering the league. This was reduced to only 3 years in 1993.5 This rule restricts a number of players from capitalizing and cashing in on their immense talent, and forces them to wait three years after graduating high school before they are able to compete in the NFL. 6 Rather than draft young players with potential talent and develop them, the NFL seeks to develop the players in this “free farm system” we call the NCAA and then capitalize on their talents and marketability. These college athletes who are drafted earliest are already major stars in the sports world, their talent and potential for great success alone will sell jerseys and tickets for the NFL. Where this becomes unfair for the player is many of them, such as Jadeveon Clowney, are forced to remain in school longer than necessary before being able to cash in with the league, thus risking career-ending injury. The NFL defends the eligibility rules by stating they are necessary to allow players to grow physically and mentally mature before entering what is the most violent, physically demanding profession in the United States today. From SI.com article by Zac Ellis, “South Carolina’s Jadeveon Clowney likely to miss rest of spring.” Clowney never really considered sitting out his junior season, he did however, miss the 2013 spring game. 4

Steve E. Cavezza, “Can I See Some ID?: An Antitrust Analysis of the NBA and NFL Draft Eligibility Rules”, University of Denver Sports and Entertainment Law Journal, 22, 2010. 5

This rule is still even considered “Special Eligibility” according the the NFL and their wording from https://www.nflregionalcombines.com/Docs/Eligibility%20rules.pdf. According to this, “No player shall be permitted to apply for special eligibility for selection in the draft, or otherwise be eligible for the draft, until three NFL regular seasons have begun and ended following either his graduation from high school or graduation of the class with which he entered high school, whichever is earlier.” 6

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The relationship between the NFL and its players is governed by a collective bargaining agreement (CBA). The NFL players have unionized and have their interests represented by the NFLPA and negotiated through the CBA. These players have elected to join a union and have selected a bargaining representative and thus are forfeiting their right to negotiate individually with the teams and league. Although the NFL eligibility requirements are never explicitly stated in the CBA, in Clarett v. NFL the court ruled that they are indeed a part.7 Here, the CBA was said to be shielded from the antitrust claim that Clarett made because of the non-statutory labor exemption because the CBA concerns mandatory bargaining subjects 8 and is achieved by arms-length negotiations between the NFL and the NFLPA. The Clarett case deserves more attention because Clowney may use it as a template for suit against the NFL and provides us with alternative ways of discussing the unfair nature of the NFL’s eligibility rules. Before we begin to look at the relevant case law, the NFL has several reasons for why they do not just allow anyone to play in their league. One reason, stated above, is the NFL is considered the most violent professional sports league in existence. With recent rule changes aimed at improving player safety as well as ongoing investigations into head injuries having debilitating impacts on players lives well after they retire, it is hard to deny the physicality that comes with the NFL. 9 Attached to this desire for players to be physically mature is a desire for mental maturity. While players may be more physically mature and gifted at younger ages, the NFL has evolved into a game that involves more thinking and understanding. 10 Clearly, money comes with being drafted into the NFL, a substantial amount at that.11 The NFL does not want to place an enormous financial responsibility on an 18-year-old that has just graduated from college. The risk and burden, they

Jeffrey Hoffmeyer, “Fourth Down and an Appeal: The Nonstatutory Exemption to Antitrust Law in Clarett v. National Football League”, Volume 13, Sports Lawyers Journal, 193, 2006. 7

“Mandatory bargaining subjects” according to labor law include: hours, wages, terms and conditions for employment, etc. 8

9

To determine that a player needs three years in college before he is physically mature enough to play in the league is preposterous. The young men coming out of high school are bigger, faster and stronger than they have ever been and some may be fully equipped for NFL stardom(See: Jadeveon Clowney). 10

Although I agree mental maturity is key for NFL players, to determine that three years in college is sufficient to mentally mature is just simply unfair. There are countless examples of 22-23 year old players that spent the require three years in college and still are not mentally mature enough to handle the NFL(See: Dallas Cowboy’s wide receiver Dez Bryant). 11

2012 Number 1 draft pick, Andrew Luck, signed a fully guaranteed deal of 4 years $22.1 million dollars. http://www.nfl.com/news/story/09000d5d82aabdad/article/andrew-luck-signs-221m-indianapoliscolts-contract

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argue, is simply too much.12 There is also an enormous risk of injury for an incoming player that may not be just quite ready for the league. Especially considering the recent concern over head injuries, the NFL has a duty to be extremely cautious. 13 It should, however, ultimately be the players’ decision to enter the league when he believes he is physically able to compete at a high level. It is also a scout’s, GM’s and team’s responsibility to select and determine the players they believe are most ready to compete in the league. One final reasoning behind the eligibility requirement is the NFL feels it has a responsibility to fans to put out the best possible product. This follows then, that the best possible product means older players with more experience. 14 These reasons from the NFL are both obvious and arguable. They all contain equally relevant counter-arguments for why an age requirement should not be in place.

II. RELEVANT CASE LAW

A challenge to the draft eligibility is nothing new and the answer from the courts is far from straightforward. Former Ohio State phenomenon, Maurice Clarett challenged the rule, hoping to enter the draft after his sophomore season at Ohio State.15 Claiming antitrust violations16, Clarett filed suit in hopes of becoming eligible for the 2004 NFL draft. 17 The district 12

To counter this argument, there is no guarantee that in the three years this player must wait to enter the draft he will become any better at handling money. Should the NFL require than that potential prospects, while in school, take a course on personal finance? Regardless of age, giving someone 22 million dollars is a huge financial responsibility and the risk of them blowing all of it will always exist. If this is such a concern, why doesn’t the NFL just appoint financial advisors to every incoming player? 13

This is the one reason I see substantiated by the NFL. I think it is very plausible to believe the NFL has a real concern for player safety and allowing a player who may not be ready to enter the league physically, places them at risk. 14

There are many younger players with much more talent than older, more experienced players. These players with extraordinary talent have the very good possibility of immediately succeeding on the field. Young, talented players also tend to attract the most fans because they are new and exciting. 15

Clarett really only played one season at Ohio State, leading them to the National Championship in 2002. He sat out his sophomore season for receiving extra benefits. In other words, Clarett was claiming a “restraint of trade”. This rule put in place by the NFL was preventing him from doing a job that he otherwise felt perfectly capable of doing. 16

17

Having sat out his entire sophomore season, his draft stock undoubtedly had fallen but many projections still had him going in the 1st round.

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court initially ruled in his favor using the Mackey test 18 determining that the eligibility rules cannot shield agreements that only affect those who are not a part of the bargaining unit. 19 The court also determined that the three-year rule is not a mandatory bargaining subject 20 and the court also said there is no way this rule could be a product of arms-length negotiations, thus not satisfying the final part of the Mackey test.21 The district court’s ruling was overruled by the Second Circuit court.22 This court determined that the district court could not come in and substitute its judgment for the NFL and the NFLPA which negotiated the CBA which is shielded from antitrust challenge by the nonstatutory labor exemption. This would subvert the policies of federal labor law, thus, declaring Clarett ineligible for the 2004 NFL Draft.23 The non-statutory labor exemption the Second Circuit court used is essential in our review of the NFL’s age requirement. This exemption always favors collective bargaining over antitrust law. Clarett’s antitrust claim had no chance of surviving or even applying once the court ruled that the non-statutory exemption was viable. 24 A line of prior cases also helped the second circuit court determine that labor laws, not antitrust laws, are the proper way to remedy the case. In Wood v. National Basketball This is a case stemming from Mackey v. NFL (1976) which established a three prong test to determine if the non-statutory labor exemption applies: 1) does the restraint primarily affect only parties in collective bargaining relationship, 2) does it concern a mandatory subject of collective bargaining, 3) was this a product of ‘arms length negotiations’ or an agreement between two independent parties without some special relationship. 18

Nathan Brooks, “Clarett v. National Football League and the Nonstatutory Labor Exemption in Antitrust Suits”, Cornell University ILR School, 2004. 19

20

As referenced in footnote 7, this means the court did not consider the rule as concerning wages, hours, conditions, etc. 21

The district court did not think this was a part of any negotiations at all because the rule itself was not explicit in the collective bargaining agreement. The rule itself was instituted in 1925, well before any establishment of a collective bargaining agreement. 22

This court determined that the NFL and NFLPA were subject to the nonstatutory labor antitrust exemption and therefore, are governed by federal labor laws. This brings us to the National Labor Relations Act of 1935 which stated that employees may organize into unions, engage in collective bargaining for better terms and conditions of work and take collective action including strike if necessary. Jeffrey Hoffmeyer, “Fourth Down and an Appeal: The Nonstatutory Exemption to Antitrust Law in Clarett v. National Football League”, Volume 13, Sports Lawyers Journal, 193, 2006. 23

24

The non-statutory labor exemption follows that any union-management agreement that was made in good faith through negotiation is exempt from antitrust law.

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Association, Leon Wood challenged the NBA’s salary cap 25 rules with an antitrust suit. Wood believed the NBA’s college draft system, the maximum team salary rules and the ban on player corporations contained in the CBA were a violation of section 1 of the Sherman Antitrust Act (this will be discussed in a proceeding section). The courts rejected this claim of antitrust violation and instead were exempt from antitrust law. 26 Much like Clarett, Wood tried to say he was not yet an NBA player when the collective bargaining was negotiated and he should not apply to the agreement. Another analogous case, National Basketball Association v. Williams, again applied federal labor law and determined that antitrust law has no application to collective bargaining negotiations between players and teams.27 In sum, the Second Circuit court applied these cases in all of the district courts findings. In rejecting the district court’s finding that the three year rule was not a mandatory bargaining subject the court established that eligibility rules such as this one establish conditions for initial employment making them a bargaining subject. Overall the court was able to establish that the non-statutory labor exemption “not only protects the terms established in the CBA, but also the whole collective bargaining process”.28 Labor laws allow a union to implement a rule such as an age requirement and, through the previous cases discussed, it is clear that the court is inclined to rule that eligibility rules are indeed mandatory bargaining subjects, thus satisfying the second part of the Mackey test applying the non-statutory labor exemption. The Court’s ruling in Clarett clearly give collective bargaining agreements a free pass in antitrust law 29 and the conflict

The “salary cap” was a new modification in the NBA’s collective bargaining in 1983. It instituted a maximum and minimum team salary limitation with several exceptions. 25

The court used language from Mackey explaining that “conduct which restrains trade may nevertheless be exempt from antitrust laws where: 1) the restraint primarily affects only the parties to the collective bargaining relationship; 2) the restraint is over a mandatory subject of bargaining; and 3) the agreement is a product of arms length bargaining.” The wording from this and facts regarding Wood are borrowed from Lloyd C. Bronstein, “Sports Law: Antitrust Suit Fails to Knock off NBA’s Salary Cap”, Loyola of Los Angeles Entertainment Law Review, Volume 6, 231, 1986. 26

Mark T. Doyle, “National Basketball Association v. Williams: A Look into the Future of Professional Sports Labor Disputes,” Volume 11, Santa Clara Computer & High Technology Law Journal, 405, 1995. 27

Nathan Brooks, “Clarett v. National Football League and Nonstatutory Labor Exemption in Antitrust Suits”, Cornell University ILR School, 2004. 28

The wording from the court in Clarett: “All collective bargaining activity concerning mandatory subjects of bargaining under the labor laws is not subject to antitrust law.” Also, “to permit antitrust suit against sports leagues on ground that their concerted action impose a restraint upon the labor market would serious undermine many of the policies embodied by federal labor laws, including congressional policy favoring collective bargaining.” 29

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between labor law and antitrust law is sure to surround any future suit brought to the NFL against their age requirement but the law is worth further examination.

III. FEDERAL LABOR AND ANTITRUST LAW

A. SHERMAN ANTITRUST ACT

The Sherman Antitrust Act forms the basis for most antitrust claims in the United States. It was passed by Congress in 1890 prohibiting certain business activities that the federal government deemed to be anticompetitive. It also requires the federal government to investigate any trusts, companies and organizations suspected of violating the law. 30 In order to claim a violation of antitrust law, three requirements must be met: 1) there must be a contract, combination or conspiracy; 2) that contract, combination of conspiracy produced a restraint of trade; 3) the restraint affected trade or commerce among the several states. Part of the argument from Clarett was that the NFL’s age rule was an illegal restraint on trade and excluded a broad class of players from the NFL labor market and thus constituted a group boycott due to a violation of antitrust laws. 31

B. THE RULE OF REASON

The court has established legal standards to examine violations of antitrust: “per se illegality”, the “Rule of Reason”, and “quick look.”32 The rule of reason governs the legality of player restrictions in professional sports, in the case of an age requirement the NFL must explain

30

Taken from: Cornell University Law School Website- Legal Information Institute. (http://www.law.cornell.edu/wex/antitrust). Steve E. Cavezza, “Can I See Some ID?: An Antitrust Analysis of the NBA and NFL Draft Eligibility Rules”, University of Denver Sports and Entertainment Law Journal, 22, 2010. 31

“Per se illegality” means the restraint at hand is illegal on its face. The “Rule of Reason” test is what we are concerned with because it is the standard used in sports. Is the restraint imposed justified by legitimate business purpose and is it no more restrictive than necessary? Facts borrowed from Steve E. Cavezza’s article. 32

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how this restraint is a “less restrictive means to achieve a “pro-competitive” goal.”33 If the court were able to apply this rule of reason test and determine the NFL is unjustified in claiming freedom from antitrust laws using the non-statutory labor exemption, a case could be made that their eligibility rule is illegal. Where the rule of reason test is most certainly applicable is when determining the restrictive nature of the rule and if that restraint is reasonable. Remember, the restraint must be “no more restrictive than necessary.” To determine necessity we must evaluate the rule’s effect on competition. A restraint, such as age requirement, “is unreasonable if it substantially impedes competition.” 34 If we are to use labor law as the court may wish, we can look at the players as providing a service to the market.35 There is an enormous market for these services in 32 major cities around the United States. This product the players are providing is being unnecessarily restrained by the eligibility rule in place, thus having an anticompetitive effect on the market.36 “The weighing of options, deciding among choices is how a free market works.”37 I am in no way in favor of making the NFL or any other professional sport an entirely free market, however, if the court and NFL wish to apply labor law to the case of the age requirement in place, I think we must view this as an inappropriate restraint on the market.

C. CONFLICT BETWEEN LABOR AND ANTITRUST LAW

The conflict between labor law and antitrust law is paramount in looking at and deciding these cases. One problem that can be seen in these cases is that the court has never really been precise in determining the rules of the non-statutory labor exemption and when labor law takes over, trumping antitrust law. Antitrust law seeks to prohibit unreasonable restraints on trade while labor law will allow some anticompetitive agreements. Labor law in this case is allowing for the age restriction to prohibit some competition in the league. The NFL that believes this is Jason Abeln, Chris Brown and Neil Desai, “Lingering Questions After Clarett v. NFL: A Hypothetical Consideration of Antitrust and Sport.” University of Cincinnati Law Review, 73, Summer 2005. 33

34

See footnote 32.

Here, the players’ services are a product and the market is the league itself, comprised of 32 NFL teams stretching across the U.S. 35

36

The eligibility rules and age requirement are limiting the amount of talent available in the draft. Players that are fully capable of providing their service to league and their service is equally demanded by NFL GM’s and coaches, are unable to provide this service until 3 seasons have passed from their high school graduation. This quote comes from the hypothetical dissent in “Lingering Questions After Clarett...” See footnote 32. 37

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the least restrictive means to achieving pro-competitive goals discussed earlier. 38 The players of the NFL have chosen the NFLPA to represent their interests at the bargaining table. As that representative, if they are not representing their employees, fairly the standards of labor law are not met.39 Labor law should not allow the NFLPA to exclude certain employees who are clearly able to do a job and still meet that requirement of “fair representation.” If there is an age requirement to enter the draft, how can the NFLPA represent future players and current ones fairly? Professional sports are different from other industries and should be treated accordingly when it comes to federal labor law. 40 This again gets at the idea that the NFL and its 32 teams are a market for players’ services. Labor laws are supposed to create a balance between competing interests by eliminating conflict. To determine if an act committed by a sports entity in collective bargaining is in violation of the National Labor Relations Act, we must look at whether or not the action “promotes competitive balance” required by leagues. 41 As noted before, I do not believe the age requirement promotes competition in any way. We can apply the case of Jadeveon Clowney here; several NFL GM’s have been quoted in saying he would be a top pick in this year’s draft.42 Clowney would undoubtedly be able to go to the NFL and compete at the highest level, only increasing the competition in the league. This rule is denying him the right to perform a job he is obviously capable of doing and his services are highly sought. Citing directly from the NLRA of 1935, “employers are prohibited in discriminating in regard to hire or tenure of employment or condition of employment to encourage or discourage membership in any labor organization.” An age requirement seems to be a direct discrimination in regards to hiring a prospective player and certainly does not encourage entrance into the league.

These “pro-competitive” goals include only allowing the most physically, mentally mature players to enter the league and increasing the competition level by not allowing players to be drafted that may not be ready to compete at professional football’s highest level. 38

Brando Simeo Starkey, “The Veil of Fair Representation: Maurica Clarett v. The National Football League”, Volume 37, University of Baltimore Law Forum, 17, 2006. In this case, job applicants or potential draftees are also considered employees. 39

From Clark C. Griffith article, “The Impact of Labor Law on Professional Sports.” He points out that leagues must maintain equality of competition in order to create a product that can be consumed by the public. 40

41

See above.

Michael Silver quoted a GM in the NFC in his Yahoo! Sports article, “Jadeveon Clowney should lawyer up, challenge nonsensical ‘three-years-out’ rule.” “Yes, he’s rare. He’s a mixture of Jevon Kearse and JPP (Jason Pierre-Paul). He’d go number 1 right now, no later than two. He’s an absolute freak.” 42

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CONCLUSION

The age restriction placed on the NFL draft, requiring potential employees to be three years removed from their high school graduating, is unnecessarily restrictive and ultimately has an anticompetitive effect on the NFL market. This market consists of the 32 NFL teams located in major cities around the United States, all of which are trying to present the best possible product. Citing cases like Maurice Clarett show that this is not a new issue and the current application of this rule has appeared in the form of 6’6-256 pound Jadeveon Clowney, who burst onto the scene as a high school prodigy and has been regarded as a certain future pro-bowler. He is being forced to play what will be his junior season at South Carolina before he is eligible to play in the National Football League. Barring catastrophic injury or any other unforeseen happenings, Clowney will be a top three pick in the 2014 NFL draft. He has many in the NFL seeking his services now and should not be forced to wait another season. This rule is preventing players like Clowney43 from providing their services and earning a living. The court must ask the NFL to explain how this rule has a pro-competitive effect. Currently, I see no plausible justification for restricting who can and cannot compete in the draft process. Let us leave it up to the players, scouts and NFL general managers to determine if a player is equipped for the NFL. The 3,473,333 views of Jadeveon Clowney’s hit on New Years Day would certainly conclude he is ready.

43

There are certainly other players in college football today that are fully capable of competing at the highest level in the NFL that do not meet the age requirement.

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Lawful Advertising: Corporate Advertising and its Legal Obligation to the Truth Andrew Koch Xavier University (Assistant Executive Editor)

I. Introduction Consumers feel ever more wary of the veracity of the information being given to them in advertisements, and this theme of truth in advertising is crucial to understanding the relationship between businesses and consumers. Having truth in advertising allows consumers to trust in corporations and make informed buying decisions, and all businesses rely on the trust of the public to maintain a consumer base. Businesses hesitate to feed the public blatant lies for the simple reason that they want good publicity and to build an honest reputation with potential consumers.44 Indeed, telling the truth is one of the eight core ethical principles outlined by the American Advertising Federation, the country’s largest and oldest professional organization for advertisers.45 In its set of “Principles and Practice,” the organization establishes that advertisers, along with public relations practitioners and those in the media, have a “common objective of truth and high ethical standards in serving the public.” 46 Certainly, businesses have ethical and financial incentives to faithfully represent facts about them and their products and brands in advertisements. However, businesses have for decades been relying on a certain degree of dishonesty in order to successfully advertise. For example, an advertisement is not being entirely truthful if it states that its product is “the best” when an advertiser has not performed a test of the product and others like it. This sort of exaggeration and fact-stretching has become commonplace in the advertising field, and in the last fifty years, courts have drastically changed how they establish criteria for regulating such advertisements. In this paper, I will outline the courts’ rulings in establishing what constitutes untruthful (“deceptive”) advertisement and examine what legal obligations businesses have to tell the truth in advertising as a result. While federal and state governments have instituted a number of laws related to advertising specific kinds of products, I will be focusing on general federal guidelines on advertising regulation, specifically those relating to the First Amendment, the Federal Trade Commission, and the Lanham Act, and how the courts’ understanding of these guidelines have changed. Finally, I will observe the

44

Higgins, Richard S. and McChesney, Fred S., The Way They Do the Things They Do: Materiality and Method in FTC Advertising Regulation, 18 Antitrust ABA 18, 18 (2004) 45 Snyder, Wallace S., Principles and Practices for Advertising Ethics, Institute for Advertising Ethics, American Advertising Federation, 3 (2011) 46 Id.

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implications of these evolving definitions on how businesses can expect to be held liable for truth in advertisements. II. Legal Discussion A. Advertising and the First Amendment Since the 1970’s, advertising messages (also referred to as “commercial speech”) have generally been found by the Supreme Court to be protected under the First Amendment’s “freedom of speech” clause as a form of speech rather than a business practice, as it had been classified previously. 47 The Court first asserted that advertising constituted a form of speech in the landmark case Virginia Bd. of Pharmacy v. Virginia Citizens Council, Inc., in which it ruled that a Virginia statute banning prescription drug advertising was unconstitutional under the First Amendment.48 Here, the Court found that because commercial speech is like other, protected forms of speech (labor speech, political speech, etc.), it should likewise be protected under the First Amendment.49 Furthermore, the Court found that consumers benefit from marketing and its free, unimpeded flow of information, and that the whole consumer market benefits from having unregulated advertising.50 Case law in the decades that have followed the Virginia ruling has similarly restricted the government’s ability to regulate advertising. Specifically, the Supreme Court has established that the government cannot restrict businesses’ First Amendment rights regarding commercial speech if the speech “does not mislead and does not relate to unlawful activity.” 51 In other words, the government can only intervene in the event that consumers have been misled to their detriment, and thus the Court has “excluded commercial deception from the ambit of First Amendment protection.”52 As will be discussed in more detail in section B, this principle of “misleading” (or “deceptive”) advertising is key to government regulation of commercial speech.

B. The Federal Trade Commission and “Deceptive” Advertising While the First Amendment has protected businesses’ right to free speech, the policies enacted by and the rulings of the Federal Trade Commission (FTC) have become vital to the government’s efforts to regulate advertising and thus central to an understanding of business’

47

Ledewitz, Bruce, Corporate Advertising’s Democracy, 12 Boston University Public Interest L.J. 389, 391 (2003) Virginia Bd. of Pharmacy v. Virginia Citizens Council, 425 U.S. 748; 96 S. Ct. 1817; 48 L. Ed. 2d 346; 1976 U.S. LEXIS 55; 1 Media L. Rep. 1930 (1976). Retrieved from LexisNexis on Nov. 6, 2013. 49 Ledewitz, supra note 4 at 393. 50 Ledewitz, supra note 4 at 393. 51 Id. at 394. 52 Demaine, Linda J., Seeing is Deceiving: The Tacit Deregulation of Deceptive Advertising, 54 Arizona L. Rev. 719, 721 (2012) 48

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legal responsibility to have truth in advertising. 53 Congress established the FTC in the Federal Trade Commission Act of 1914 to prevent businesses from taking advantage of consumers or otherwise abusing the commercial system for personal gain. In the frequently cited Section 5 of the Act, Congress granted the Commission the right to “prescribe interpretive rules and general statements of policy with respect to unfair or deceptive practices on or affecting commerce.” 54 Within these somewhat broad boundaries, the FTC has established specific policies that define what constitutes “unfair” and “deceptive” practices and advertisements, and it is through these working definitions that the FTC has enforced policies and held businesses liable for actions it deems to be either “deceptive” or “unfair.” In its policy statement regarding “deceptive” acts, the FTC has three requirements for deception cases. First, the FTC establishes that in order for deception to occur, a business’ message or action must include a “representation, omission, or practice that is likely to mislead the consumer.”55 Under this requirement, advertisers can be liable for deception either by communicating or failing to communicate information that a consumer needs to make a fully informed purchasing decision. In addition, the FTC reviews the action in question as a “consumer acting reasonably in the circumstances.”56 This requirement, while somewhat dubious in its understanding of what characteristics constitute a “reasonable” consumer, attempts to generalize how an average person would view the advertisement or practice and what logical assumptions about the product they could make from it as represented. In other words, the “reasonable consumer” requirement “aids in distinguishing between advertising claims that deceive the public generally and those that deceive merely a small percentage of people for idiosyncratic reasons.”57 Finally, deceptive acts must have “materiality,” or bearing on the consumers’ decision to purchase a product or how they will utilize it. 58 In other words, the alleged deceptive act or message must have lead to some action on the consumer’s behalf that led to some injury, be it economic harm (i.e. purchasing a product under false pretenses about its function or quality) or physical injury from having misunderstood how to safely use a product or service. In addition to these three requirements, determining deception involves examining both the explicit messages in an advertisement and the implied message consumers might presume from these explicit messages. In practice, the FTC considers the seller’s intent and knowledge in

53

Higgins, supra note 1 at 18. Federal Trade Commission Act of 1914, Section 45(a), codified as 15 U.S.C § 45 (2012) 55 FTC Policy Statement on Deception (1983), available on the official website for the Federal Trade Commission (http://www.ftc.gov/bcp/policystmt/ad-decept.htm) 56 Id. 57 Demaine, supra 9 at 742. 58 “A ‘material’ misrepresentation of practice is one which is likely to affect a consumer’s choice of or conduct regarding a product.” FTC Policy, supra note 12. 54

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creating ads as well as what messages a “reasonable consumer,” and from this establishes what intrinsic message an advertisement might convey to an audience. 59 C. Civil Suits under the Lanham Act Government agencies are not the only safeguard in the legal system against false or otherwise deceptive advertising, and as a result, businesses need also be wary of other sources of potential liability. In addition to FTC intervention, consumers are also protected (and thus, businesses made liable to false advertising claims) by Section 43A of the Lanham Act of 1946, which gives them the right to assert false advertising claims in court.60 Under this section of the act, consumers who feel they have been wronged by false advertising are able to sue the offending company or advertisers in a civil suit.61 Specifically, companies whose advertising “is likely to cause confusion, or to cause mistake, or to deceive” consumers about some aspect of a company or its products are liable to be sued. 62 However, recent Supreme Court decisions are changing the ways in which consumers can sue for false advertising claims.63 Specifically, two Supreme Court cases in the past six years have changed the way civil suits, including false advertising claims, are filed, making it more difficult for plaintiffs to successfully file civil claims.64 In 2007, the Supreme Court ruled in Bell Atlantic Group v. Twombly that the plaintiffs had not provided enough factual evidence to suggest that the defendant’s actions had violated antitrust law and harmed consumers. 65 In a similar vein, the Court in 2009 ruled in favor of the defendant in Ashcraft v. Iqbal on the grounds that the plaintiff, a Pakistani-American man wrongfully detained and abused by FBI officials as a person of “high-interest” following the September 11th attacks, provided insufficient factual evidence of discrimination.66 In the aftermath of these two cases, plaintiffs in civil cases have a heightened responsibility to overcome a “plausibility standard” that requires factual evidence of harm in addition to merely suggesting that some harm had been done. 67 As a result of these higher standards of proof, more false advertising claims under the Lanham Act are being dismissed or otherwise being denied motions for preliminary injunctions based on

59

Higgins, supra note 1 at 18. Cole, Christopher A. and Crawford, Jason M., Not as Easy as Advertised: New Challenges in Bringing a Successful § 43(A) False Advertising Case, 12-6 Antitrust ABA 2 (2013). Retrieved from LexisNexis on Oct. 9, 2013. 61 Lanham Act, Section 43(a), codified as 15 U.S.C. § 1125 (2012) 62 Lanham Act, supra note 18 63 Marcotte, Matthew D. and Villafranco, John E., Unfair Competition in Advertising: Developments and Trends in Lanham Act Litigation, 22 Antitrust ABA 98, 98 (2008) 64 Cole, supra note 17. 65 Bell Atlantic Corporation, et al., v. William Twombly, et al., 550 U.S. 544; 127 S. Ct. 1955; 167 L. Ed. 2d 929; 2007 U.S. LEXIS 5901; 75 U.S.L.W. 4337 (2007). Retrieved from LexisNexis on Nov. 6, 2013. 66 John D. Ashcroft, et al., v. Javaid Iqbal, et al., 556 U.S. 662; 129 S. Ct. 1937; 173 L. Ed. 2d 868; 2009 U.S. LEXIS 3472; 77 U.S.L.W. 4387 (2009). Retrieved from LexisNexis on Nov. 6, 2013. 67 Cole, supra note 17. 60

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an “insufficient showing of harm.”68 As a result of these regulations, plaintiffs must be more specific and fact-based in their claims. Christopher Cole, Vice-Chair of the American Bar Association Antitrust Section’s Committee on Private Advertising Litigation, has identified five points of contention which plaintiffs in false advertising cases must make in order to avoid having their case dismissed following the Twombly and Iqbal decisions: 1) Defendant made false statements of fact about its own product or plaintiff’s product 2) Those advertisements actually deceived or have the tendency to deceive a substantial segment of their audience 3) The deception is material in that it is likely to influence the purchasing decision 4) Defendant caused the false advertisement of its false advertised goods to enter interstate commerce 5) Plaintiff has been or is likely to be injured as the result of the foregoing either by direct diversion of sales from itself to defendant, or be lessening of the goodwill its product enjoys with the buying public69

These specifications for plaintiffs looking to sue for false advertising drastically affect how plaintiffs approach their cases, making them harder to prosecute but also ensuring that consumers were actually harmed by the advertisement’s deceptive message. D. Implications of New Developments on Business Advertisers While the aforementioned “plausibility standards” recently imposed by decisions like Twombly and Iqbal have made the requirements for consumers looking to sue for false advertising more strict, they have also encouraged civil courts to adopt methodology more similar to the FTC’s definition of “deceptive” advertising, and this relationship benefits businesses looking to avoid false advertising suits. The FTC’s qualifications for “deceptive” advertising match the first three requirements of the Twombly/Iqbal requirements almost point-for-point. Cole’s second contention about advertisements deceiving a “substantial segment” of the audience seems to invoke the FTC’s requirement that a “reasonable consumer,” rather than a minority of individuals, might misinterpret an advertisement, and Cole’s third and fifth points about “material” or otherwise physical damage occurring to the plaintiff are nearly a word-for-word reproduction of the FTC’s requirement for materiality. The courts now have similar definitions of what constitutes “deceptive” advertising as does the FTC, creating a set of standards that applies to multiple potential sources of liability. Taken together, the FTC’s regulations and 68 69

Id. Cole, supra note 17

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Section 43A of the Lanham Act have created a series of “public and private mechanism [that] form a fairly uniform and stable body of law governing deceptive advertising.” 70 As a result, changes in the way courts have handled false advertising claims under Section 43A of the Lanham Act have made it simpler for businesses to recognize their legal responsibilities to tell the truth in advertising as they work more closely in conjunction with FTC regulations. In addition, the ever-changing media landscape benefits businesses’ ability to freely advertise. With the improvement of color printing technology and the rise of media vehicles like television and the Internet, advertising is becoming increasingly visual rather than verbal, and courts have yet to establish a set of regulation guidelines regarding visual messages. 71 While much of the imagery presented in advertisements is now visual rather than verbal, the FTC and plaintiffs in false advertising claims largely take issues of verbal deception to court despite the proven superior persuasive power of visual imagery over verbal imagery. 72 As a result of this discrepancy, visual imagery “provides a more fertile ground for deception than the linguistic components of an ad” both in its efficacy and in its relative lack of regulation. 73 In this way, businesses have an opportunity to advertise with greater freedom so long as it uses visual imagery. III. Conclusion Despite the government’s efforts to reduce deceptive advertising, companies and lawmakers alike must wrestle with the issue of a business’ legal obligation to tell the truth in advertising. As has been discussed, the Supreme Court has maintained that businesses have constitutional rights to freedom of speech (including for their advertising and other commercial speech) under the First Amendment. However, guidelines set forth by the Federal Trade Commission and Section 43A of the Lanham Act can restrict those rights in cases in which advertising has been “deceptive” or has harmed consumers. While these guidelines have protected consumers from harmful and untruthful advertisements for decades, changing requirements for civil lawsuits and an evolving media landscape have again changed the ways in which the government can regulate advertising, benefitting businesses. While advertisers and the businesses they represent have an ethical standard to follow in treating consumers fairly, they are not necessarily bound by similar legal constraints given new kinds of media and an increasing emphasis on visual imagery. However, this occasional lack of legal restriction does not relieve advertisers of their ethical responsibility to consumers. Advertisements ought to present consumers with factual information regardless of possibly legal liability, as communicators like advertisers and those in the media have a duty to use their influence and skills to give the public the best and most accurate information as possible.

70

Demaine, supra note 9 at 722. Id. at 723 72 Id. 73 Demaine, supra note 9 at 724 71

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Can Religiously Affiliated Businesses be Required to Carry Healthcare Packages that Include Contraceptives? Annie Szendrey Xavier University (Executive Editor)

I.

Introduction

Over the past century, universal health care in the United States has continued to be a topic of discussion, and healthcare in relation to employment has especially been a recent issue. With the current initiation of a healthcare system that requires all eligible individuals to purchase a package, many changes have recently ensued. Furthermore, employers are compelled to alter their benefits due to the new system. However, an issue arises not so much from the Affordable Care Act, which is the congressional legislation passed that requires all eligible recipients to buy healthcare, but from the Health and Human Services (HHS) Mandate, which is a provision issued by Kathleen Sebelius, the Secretary of Health and Human Services for the United States, under the power issued to her by the United States Congress 74. The HHS Mandate is a “requirement… [that] compels adherence with its terms under penalty of law, which in this case is a substantial fine.”75 Under the HHS Mandate, businesses are required to provide insurance that covers contraception, abortion, and sterilization for any of their employees. 76 While the Affordable Care Act and the HHS Mandate possess clear relations to one another, they have different implications for businesses. The Affordable Care Act implements healthcare requirements for individuals specifically, whereas the HHS Mandate clearly defines necessities for a business in supplying healthcare packages to their employees. It is this requirement specifically – carrying insurance plans that cover contraception – that has sparked an issue for religiously affiliated businesses that are not necessarily solely providing for people of the same faith. II.

Background/Context

Over the course of time, the burden of maintaining health has moved away from family remedies and has been placed on experts – doctors. As the role of seeking help from medical practitioners became more common in American society, the American Association of Labor Legislation (AALL) was the first group of individuals in the United States to push for nationwide health care

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Eugene R. Milhizer, Law of Life: Article: “The Morality and Legality of the HHS Mandate and the ‘Accommodations,’” 11 Ave Maria L. Rev. 211, 214 (2013). 75 Id. 76 Katherine Lepard, Standing Their Ground: Corporations’ Fight for Religious Rights in Light of the Enactment of the Patient Protection and Affordable Care Act Contraceptive Mandate, 45 Tex. Tech. L. Rev. 1041, 1042 (2013).

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in 190677. For years, the efforts of progressive groups failed to instigate the idea of universal healthcare for all citizens78. However, certainly due to the advancements in technology and medical procedures offered, healthcare in the United States became increasingly more expensive as the decades passed. In 1945, President Harry Truman initiated the movement to fully implement a national healthcare system. The effort did not fully succeed; a private system prevailed for well-off citizens, and a welfare system was drawn up for those who could not afford such healthcare79. Nevertheless, President Nixon in 1974 proposed a new universal plan “using employer-mandated private insurance for those with jobs and a separate program to insure everyone else.”80 This was when the concept of health care as a benefit of employment came about. III.

Legal Discussion

The idea of carrying contraceptives in a healthcare plan for employees has not been an issue until it appeared to infringe on religious beliefs, particularly Catholic beliefs. While there is an exception to the mandate for religious organizations that are defined by “membership and activities… exclusively limited to a single religious denomination,” profit-seeking businesses owned and operated on Catholic morals, but not in existence for mere Catholic-serving purposes, are not exempted from the mandate. 81 Such organizations would include Catholic hospitals, Catholic universities, etc.82 While these institutions may do their work because of their faith, the primary focus of the institution may be a secular element, such as providing goods at a store. A. The First Amendment The first amendment to the Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” 83 There are several particular recent cases regarding the First Amendment and religion that have been used to argue both sides of whether or not the HHS Mandate violates religious freedom. Those who argue that the HHS Mandate does not violate the first amendment utilize Employment Division v. Smith and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah in their

77

“This website, by Physicians for a National Health Program (PNHP), gives an overview of U.S. Healthcare from the 1800s to present.” Brief History: Universal Healthcare Benefits in the U.S. http://www.pnhp.org/facts/a-briefhistory-universal-health-care-efforts-in-the-us. 78 “This article offers additional information on the history of healthcare in America.” A History of Health Insurance in the U.S. and Colorado. http://www.du.edu/economicfuture/documents/HistoryOfHealthInsurance_CCEF.pdf. 79 Brief History, supra note 4. 80 A History of Health Insurance, supra note 5. 81 Milhizer, supra note 1 at 212. 82 Chelsea Rutherford, Recent Case Development: Federal Court Hears Challenges to HHS Mandate Contraception Coverage – Belmont Abbey College v. Sebelius and Wheaton College v. Sebelius, 39 Am. J.L. and Med. 182, 183 (2013). 83 “This is a site with texts of all of the major U.S. historical documents.” Charters of Freedom. http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html.

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discussions84. Employment Division v. Smith solidified that an individual is not permitted to engage in illegal behavior, merely because it follows their religion to do so.85 This supports the idea that a religiously affiliated business may be prevented from doing something that it deems should be a religious liberty; such an instance would occur if the rule, or mandate, is broad and does not discriminate merely to prevent the particular religion from participating in its practices. The notion of generality stems from Church of Lukumi Babalu Aye, Inc. v. City of Hialeah; in this case, a law was allegedly written to prevent this church from practicing animal sacrifice. 86 The Supreme Court ruled that “a law is neutral as long as it does not intentionally single out a religion for disfavor, and it is generally applicable if it applies across the board.”87 Proponents of the HHS Mandate being implemented in all businesses argue that the mandate is “neutral and generally applicable,” as was referenced in the case. The mandate applies to all businesses, regardless of their religious affiliations. 88 Both of these cases were decided in light of the First Amendment, saying that if a rule or law is generally applicable and does not appear to wrongfully discriminate against a specific religion, then the law is constitutional. Furthermore, supporters of the HHS Mandate being implemented in religiously affiliated businesses utilize Employment Division v. Smith to further their own argument that the HHS Mandate does not “prohibit the free exercise” of religion because “free exercise protection only applies when a law or regulation has the purpose of burdening that individual's religious beliefs.”89 The Court emphasizes in the ruling of this case that “a person exercises religion by believing and professing that person's religious preference.” 90 Advocates of the HHS Mandate would argue that providing healthcare packages with contraceptives does not violate such “believing and professing.” However, whether or not supplying contraceptives in a healthcare premium package constitutes a violation of “professing that person’s religious preference” is a legal question truly still unanswered at this point in time. On the other hand, opponents of the HHS Mandate argue how the mandate does in fact burden the Catholic faith. Even with the accommodation recently offered that would have private insurance companies solely provide contraceptives at no cost, the cost of such a “free” service would eventually work its way down to consumers, including religious institutions, which will have to pay by way of increased taxes. 91 Therefore they are still essentially funding

84

Robin Fretwell Wilson, The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, 53 B.C. L. Rev. 1417, 1421 (2012). 85 United States Supreme Court: Employment Division v. Smith, 494 U.S. 872 (1990). (also viewed at http://www.oyez.org/cases/1980-1989/1989/1989_88_1213) 86 United States Supreme Court: Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 597 F.3d 769, 2009 U.S. App LEXIS 4891(6th Cir. Mich., 2010). 87 Caroline Mala Corbin, The Contraceptive Mandate, 107 Nw. U.L. Rev. Colloquy 151, 153 (2012). 88 Id. 89 Lepard, supra note 3 at 1057. 90 Employment Division, supra note 12. 91 Milhizer, supra note 1 at 222.

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what they believe to be sinful, which is a burden to Catholics. 92 Moreover, opponents of the HHS Mandate further state that there is a burden in the sense that the law is discriminatory towards the Catholic faith, and it hinders some religious institutions, but not others.93 This notion therefore does not fulfill the “generally applicable” provision set out in Church of Lukumi Babalu, according to mandate opponents. Hence, free contraceptives should not be allowable under the HHS Mandate, since the guidelines particularly hamper the Catholic faith, and specifically, certain Catholic organizations at that. Additionally, advocates of the unconstitutionality of the HHS Mandate, such as Eugene R. Milhizer, President of Ave Maria Law School, utilize Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission when making their argument. In Hosanna-Tabor, the Supreme Court ruled against the Obama Administration’s arguments that a ministerial organization should not be able to discriminate against applicants merely because they do not have the same religious beliefs; the Court ruled that employment discrimination rules do not apply to ministerial regimes. 94 Such institutions should be able to choose their own leaders, because they should have leaders who obviously have the same religious beliefs. Milhizer argues that this case applies to the discrepancy of the HHS Mandate, in favor of Catholic churches, when she states: The government, rather than entangling itself in the selection of religious ministers, is instead picking and choosing which of a religion's deeply held doctrines and convictions its institutions must violate. There is no precedent that authorizes this. In fact, the precedent is just the opposite.95 Proponents argue that since the government is not authorized to get involved in the decisions of religious organizations choosing leaders, it should not suddenly be allowed to get involved in other circumstances either. B. The Religious Freedom Restoration Act Besides the First Amendment, religious organizations that are not exempt from implementing the specific healthcare coverage for their employees under the HHS Mandate also argue that their religious liberties are further violated under the terms set forth by the Religious Freedom Restoration Act (RFRA). Under RFRA, if the government shows that it is furthering its interest in the least effective possible way, and it happens to burden religion in the process, the government is still allowed to proceed.96 The question, therefore, is whether or not the government is accurately furthering its interest in the least effective way possible by requiring 92

“This website draws snippets from the Catechism of the Catholic Church that explain sin.” Catechism of the Catholic Church. http://www.vatican.va/archive/ccc_css/archive/catechism/p3s1c1a8.htm (viewed at section 1868). 93 Lepard, supra note 3 at 1042. 94 Hosanna-Tabor, supra note 13. 95 Milhizer, supra note 1 at 221. 96 Lepard, supra note 3 at 1054.

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businesses to carry healthcare packages with contraceptives. Proponents of the mandate argue that the government is implementing the system to compel its interest in promoting women’s health and furthering gender equality. 97 Their argument that this is the least restrictive means of doing so is implicit in their refutation of alternative healthcare methods. However, it has been argued that contraceptives do compromise women’s immune systems, thus supporting the opponents’ case.98 To them, therefore, the government is not properly inducing its interest. Additionally, other, less imposing alternatives have been suggested, implying that the government is not using the least restrictive means. In one case, Newlands v. Sebelius, the plaintiffs suggested: Creation of a contraception insurance plan with free enrollment, direct compensation of contraception and sterilization providers, creation of a tax credit or deduction for contraceptive purchases, or imposition of a mandate on the contraception manufacturing industry to give its items away for free. 99 In this way, opponents of the mandate argue in various ways that the government is not properly employing its interest, and there are less restrictive ways to apply this interest, regardless. C. Current Implications for Religious Organizations Non-Exempt from the Mandate What does the implementation of the mandate mean for non-exempt religious organizations? Despite the fact that the mandate is not a piece of legislation passed by Congress, unlike the Affordable Care Act, as mentioned previously, there are still currently legal implications for not supplying contraceptives to employees in healthcare packages. Eugene Milhizer states that all Catholic institutions faced with this dilemma must: Secularize yourself by breaking connections with the Church… (2) pay exorbitant annual fines to avoid paying for insurance policies that cover abortifacients, contraception, and sterilization, (3) sell the institution to a non-Catholic group, or (4) close it down. 100 However, as smaller battles in lower courts continue to be fought for the time-being, some religious institutions are working their way around having to choose between any of these four difficult decisions. In Newland v. Sebelius, the owners of Hercules Industries, the Newlands, argued that they could be exempted from providing contraceptives to their employees because they “run Hercules Industries in a manner that reflects their sincerely held religious beliefs.” 101 In order to emphasize that this is truly how they ran their corporation, the Newlands altered the articles that outline their business; they added that the business’s purpose would be “following 97

Id. at 1055. Milhizer, supra note 1 at 216. 99 United States District Court for the District of Colorado: Newlands v. Sebelius, 881 F. Supp. 2d, 1287; 2012 U.S. Dist. LEXIS 104835. 100 Id. at 225. 101 Newlands, supra note 26. 98

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appropriate religious, ethical or moral standards,” 102 and that the board of directors needed to focus on these “’religious, ethical or moral standards’ at the expense of profitability." 103 This changing of their documents, mission statements, and overall business outline, was enough to get them relief from having to supply contraceptives to their employees. 104 Despite the necessity of having to pay fines for not supplying healthcare packages in full to employees under the HHS Mandate, if Hercules Industries was able to make slight alterations, it seems that the requirement of supplying contraceptives to employees may become somewhat simple for Catholic institutions to bypass. All these organizations need to do is more clearly define in their documents how their faith affects their work. This may be a good exercise not only for the employers to reevaluate what they are doing and why, but also for secular overseers who would be reading and deciding if such an institution was exempt from implementing the HHS mandated healthcare provision in full. IV.

Conclusion

The Health and Human Services Mandate has been a central topic of discussion in society today, primarily because its ramifications are astounding – whether good or bad – for just about every individual in the United States. Former case law has been a predominant factor in arguing for or against the implementation of the HHS Mandate within non-exempt religious institutions. Advocates on both sides utilize aspects of the First Amendment to state in favor of or against the requirement of contraceptives in healthcare packages. Supporters of the mandate implementation rely heavily on the principle of generality when issuing the mandate, while opponents argue strongly for the notion that their religious beliefs are severely burdened by this necessity for them as employers. In regards to the Religious Freedom Restoration Act, proponents argue that the government is effectively practicing its interest in the best possible way, while opponents argue for alternative methods. Finally, many previously non-exempt employers are dealing with the issue at large by merely altering their vocabulary in their by-laws as organizations; by doing so, some are able to fall under the exempt category instead.

102

Id. Corbin, supra note 14, 1052. 104 Newlands, supra note 24. 103

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GUEST SEGMENT

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Shortage of Execution Drug Allows Ohio to Step Back Mike Brickner Director of Communications & Public Policy for the ACLU of Ohio Harry Mitts, Jr. was executed on September 25, 2013. By Ohio’s standards, a state that has one of the highest uses of the death penalty, Mr. Mitts’ execution was routine. The Ohio Parole Board did not recommend clemency, nor did Governor Kasich grant it. There were no last-minute appeals. However, his execution may prove crucial for Ohio’s broken death penalty system simply because it marked the end of its supply of execution drugs. Ohio was to make history in November by becoming the first state to use the two-drug combination of midazolam and hydromorphone in the execution of Ronald Phillips. State officials decided to use this experimental combination of powerful sedatives and painkillers after supplies of other execution drugs ran dry. These shortages have caused other states to begin using experimental and downright dangerous methods to carry out executions. Fortunately, Mr. Phillips’ execution was delayed, but we will be back in the same position in January 2014, when the next execution is scheduled. Ohio is not alone is seeking out new sources of lethal injection drugs. One of the most popular alternatives has been for states to obtain drugs from compounding pharmacies. These drugs are made to order and have no accountability measures or oversight from the Food and Drug Administration (FDA) to ensure the drugs work as they are intended. The result—some batches of drugs from compounding pharmacies may be ineffective and would not have passed traditional FDA approval. This greatly increases the risk that the condemned will experience torturous pain while they are executed. Even those who may strongly agree with the death penalty must admit that conducting state business in secret without accountability is no way for government to run. Unfortunately, Ohio tends to be a trailblazer in devising new ways to execute people. It was the first state to use a single drug, sodium thiopental and then pentobarbital, in executions. These changes in execution methods underscore the tremendous problems that have plagued Ohio’s lethal injections over the last several years. Most notably, in a short three year span, the state performed three botched executions. Corrections officials eventually executed Joseph Clark, Jr. and Christopher Newton but only after hours of attempts. Clark infamously exclaimed during the procedure, “It don’t work!” while Newton’s execution took so long he had to take a bathroom break. Romell Broom’s execution was suspended midway through because officials were uncertain they could successfully execute him.

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In the wake of these problems, Ohio revamped its execution procedures and began to use new drugs to carry out lethal injections. Litigation on these protocols led to a de facto moratorium on executions for over a year. The recent move by Ohio and other states to experiment with lethal injection drugs is outrageous, but also rather futile. While we continue to experiment with new drugs to execute human beings, we ignore the underlying problems with the death penalty. Independent reviews by the Associated Press and American Bar Association have raised serious concerns about the fairness of Ohio’s death penalty system. Ohio Supreme Court Justice Paul Pfeiffer, an architect of the state’s modern death penalty has lambasted the current system as a “death lottery” and called for the state to stop executions. Former Ohio Attorney General Jim Petro has recently spoken out regarding the imperfect nature of our justice system, and that the risk of executing an innocent person is too great to continue sentencing people to death. Ohio Supreme Court Chief Justice Maureen O’Connor has also taken action on the death penalty, creating a taskforce to examine whether the death penalty is fairly applied. The taskforce has met diligently over several months, and expects to release recommendations in the coming months. These recommendations could significantly alter the death penalty in Ohio and bring much needed reform to a hopelessly broken system. Ohio has executions scheduled through 2015, marking a constant drumbeat of executions over the next two years. New execution drugs and protocols amount to experimentation with human lives, and will almost certainly lead to litigation and future problems in the death chamber. At the same time, Ohio continues to risk executing innocent individuals. While that risk will always be present, it looms even larger absent the reforms under consideration at the Ohio Supreme Court. The shortage of execution drugs presents a unique opportunity for Ohio to step back from the death penalty and reassess whether it is still needed. Botched executions, wrongful convictions, unfair and arbitrary sentences, and questions about racial and geographic disparities all point toward a system that must at least be reformed, and should be shut down altogether. Now is the time to slow down the machinery of death, not simply tweak a few protocols and continue down the same path.

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XAVIER UNDERGRADUATE LAW REVIEW

XAVIER UNDERGRADUATE LAW REVIEW PARTNERSHIPS 7Sage LSAT Prep http://7sage.com/ ACLU of Ohio http://www.acluohio.org/ Penn Undergraduate Law Journal http://www.pulj.org Washington Undergraduate Law Review http://students.washington.edu/wulr/ University of Chicago Undergraduate Law Review http://uculr.com/

VOLUME I 路 ISSUE I 路 Fall 2013

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XAVIER UNDERGRADUATE LAW REVIEW

VOLUME I 路 ISSUE I 路 Fall 2013

34


The xavier undergraduate law review  

VOLUME I, ISSUE I

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