In her dissenting opinion last June, Ruth Bader Ginsburgwarned that the Hobby Lobby ruling would have far-reaching, unintended consequences. Others agreed. Looking at how the case has been applied in lower courts, Toobin argues that the Notorious RBG was right; the ruling is “opening the door for the religiously observant to claim privileges that are not available to anyone else”:
One such matter is Perez v. Paragon Contractors, a case that arose out of a Department of Labor investigation into the use of child labor by members of the Fundamentalist Church of Jesus Christ of Latter-day Saints. (The F.L.D.S. church is an exiled offshoot of the Mormon Church.) In the case, Vernon Steed, a leader of the F.L.D.S. church, refused to answer questions by federal investigators, asserting that he made a religious vow not to discuss church matters. Applying Hobby Lobby, David Sam, a district-court judge in Utah, agreed with Steed, holding that his testimony would amount to a “substantial burden” on his religious beliefs—a standard used in Hobby Lobby—and excused him from testifying.
But Ilya Somin maintains that the court made the right call, and that denying constitutional rights to corporations would in fact be disastrous:
On Friday, the Obama administration proposed a fix to the ACA’s contraceptive mandate that it hopes will render the effects of the Hobby Lobby ruling moot by providing a way for employees of closely-held corporations with religious objections to the mandate to obtain contraception coverage. Sarah Kliff outlines the new rule, on which the administration is now seeking comment:
The Obama administration wants to extend the accommodation for religious non-profits — where the health insurance plan, rather than the employer, foots the bill for birth control — to objecting for-profit organizations. At a company like Hobby Lobby, for example, this would mean that the owners would notify the government of their objection to contraceptives. The Obama administration would then pass that information along to Hobby Lobby’s health insurance plan, which would be responsible for paying for the birth control coverage. …
The White House will also give more leeway to religious non-profits, like hospitals and colleges, that do not want to comply with the contraceptive mandate. These non-profits will no longer be required to notify their health plan that they will not provide contraceptives, as preliminary regulations would have required. Instead, these employers will now only be required to notify the federal government of their objection and the government will have the responsibility of notifying the insurance plan.
But religious organizations that object to the mandate in and of itself are not satisfied:
“Here we go again,” said Russell Moore, president of the policy arm of the Southern Baptist Convention, the largest U.S. Protestant denomination. “What we see here is another revised attempt to settle issues of religious conscience with accounting maneuvers. This new policy doesn’t get at the primary problem.”
The pro-life movement is surging at the state level:
Monday’s Hobby Lobbydecision is part of a deeper trend: even as Obamacare worked to expand access to contraceptives, decisions by both the courts and state governments have left American women with less access to reproductive health care than they did four years ago. Since 2010, states have moved aggressively to restrict access to abortion and taken new steps to defund family planning programs. Advocates on both sides of the issue describe the wave of changes as unprecedented.
States passed a record 205 abortion restrictions between 2011 and 2013, more than the entire 30 years prior. … In Texas, the number of abortion clinics has shrunk by half, from 40 to 20, since 2011. Arizona had 19 abortion providers in 2010; now it has seven. One clinic that shuttered posted a message on its website, directing clients go to the nearest abortion provider, in Houston, 100 miles away.
Many of those restrictions were squarely firing back at the Affordable Care Act. Twenty-five states, for example, now limit or ban abortion coverage in Obamacare’s new insurance markets. None of those laws existed before health reform.
You continue to double down on Hobby Lobby – that it is a case of limited scope that has little bearing beyond itself; that this contraception exemption is a statutory one, and not a Constitutional issue; that liberals are seriously over-reacting. Where are the liberals’ liberal values, you ask, in regards to accommodating religious rights with respect to (the new) majoritarian rule.
I sincerely respect every person’s religious rights – every PERSON’s religious rights. Think about your own personal relationship with God and what that means to you. Can you honestly then state that a corporation can have sincerely-held religious beliefs? Can it go to church or receive the sacraments? Can it be a conscientious objector? Does it have a soul? Of course not. The Court already decided in Citizens United that a corporation can have free speech rights. Now it can have religious rights. What other rights that formerly inhered only in individuals can a corporation possess? Maybe the right to keep and bear arms?
You say, “A few organizations and closely-held companies want to be exempted for religious reasons.” First, you don’t know yet that it’s just a few, now that the gates are open. Secondly, as you already know, 85–90% of corporations fit the “closely-held” description, and they don’t necessarily employ just a few workers. (Hobby Lobby has 561 stores and 23,000 employees as of 2012.) I’m sorry, but once you stipulate that that many corporations can have religious rights, that is a constitutional question. And that’s how this SCOTUS works – by building on its own wrong-headed precedent. Two decisions that confer personhood on a legal entity make the third decision a lot easier.
And if this is a narrow decision by the Court, how is it that it may already be having adverse effects? Just one day later, we find out that the decision really does include all ACA-covered contraceptives, not just the four that Hobby Lobby doesn’t “believe” in. And the next day, this: The President’s pending executive order concerning LGBT discrimination and federal contractors is coming under closer scrutiny from faith leaders. How long might it be before some of these companies will want to opt out of non-discrimination against gay people because of their sincerely-held religious beliefs.
I’m grateful for this eloquent dissent – and many others. The conversation we’ve had has changed my mind on a few things, and clarified it on a few others. So here are some thoughts in response, after mulling this over some more.
The first is on the question of religious freedom. And I agree with my reader on the core point. I do not believe that even a closely held religiously informed for-profit corporation has a soul. In fact, the desire for profit is a very strange thing for a religious organization to be involved in at all. Whatever the heretical claims of the Prosperity Gospel, there is no serious Christian defense of making money as your primary purpose – and a for-profit company is, by definition, primarily about making money. I think that automatically excludes it from the religious principle. You pick either God or Mammon. Ayn Rand, for the umpteenth time, is an enemy of Christianity, not an ally.
My own view of a religious organization is one primarily devoted to religious ritual and service. Some non-profit charities would be included, but no for-profit companies would. In other words, just to be clear, I would have voted for the minority if I were a Supreme Court Justice on those grounds alone. Norm Ornstein has a great post on this principle and I share almost all his conclusions.
Equally, I think it’s fair to say that the sincerity of the religious motives behind Hobby Lobby is a little dodgy. They provided – voluntarily – the very allegedly abortifacient contraceptives in their own health insurance coverage before the ACA came into effect. How does that square with their claim to be stricken by their conscience on the question now that Obamacare is mandating it? Hobby Lobby also has investments in companies that make contraceptives. Again, their squeamishness now reeks of opportunistic politics, not sincerely held religious conviction.
I’m also struck, as I wrote yesterday, about the very Catholic-centric view of religion this ruling implies.
The Supreme Court ruled against imposing the contraceptive mandate on for profit religious companies in part because there’s a less religiously “burdensome” alternative in place for non-profits: the insurer foot the bill and the government reimburses them. The justices suggested that President Obama should just make that accommodation available to the Hobby Lobbys of the world. Unfortunately, that accommodation only works smoothly on paper.
According to Bloomberg‘s Alex Wayne, under the current system the administrator of a religious non-profit’s health plan pays for objectionable forms of birth controls, and the government reimburses them. The third-party administrators say the government doesn’t have a way to pay them back yet.
How’s that for chutzpah? I put it that way because it reveals quite a lot about Rick Warren, and his desire to fire gay people from working for him in any capacity – and because it reveals the big difference between what he is demanding – and the usual exemptions allowed for religious groups. It’s not related to the Hobby Lobby ruling as such – but it represents a pretty shameless attempt to exploit the similarities.
Here’s why Rick Warren is, as so often, full of it. In a proposed law like the Employment Non-Discrimination Act, the government forces every employer to abide by the principles of equal opportunity. That’s why it can be appropriate for, say, a church or synagogue, to ask for an exemption from coercion. They’re asking to opt out of a system they are included in as Americans. But in federal contracts, an organization is first choosing to opt in for federal money, and then demanding special privileges of discrimination against another minority.
It is, in effect, asking two things: that it get a bunch of tax-payers’ money (thank you very much) and that it gets to discriminate against a minority in employment (fuck you very much). I see absolutely no reason to allow it. The federal government should represent all its citizens, gays, evangelicals, Mormons, and atheists. When it gives religious organizations money, it has every right to demand it not be used to persecute or stigmatize a minority. If those religious groups really feel it’s an integral part of Christianity to find out who’s gay and fire them (yes, that’s what sadly passes for Christianity these days), they can give up the money.
And there’s a simple matter of basic fairness here. Look at the current conditions set on federal contracts:
I have no problem with forms of the birth control pill being made an over-the-counter drug. Women are intelligent beings who can figure out how to use these drugs correctly, and the side effects from using birth control pills are less severe than those of other drugs currently sold over-the-counter.
That said, just selling a birth control pill over the counter wouldn’t make up for losing contraceptive coverage from health insurance. An IUD can cost upwards of $1,000 upfront for the exam and insertion. That’s a big chunk of change that many women can’t save up for. It also happens to be one of the most reliable forms of birth control because women don’t have to take a pill at the exact same time every day; once it’s in, you can largely forget about it until you want to take it out.
So pushing birth control as an OTC drug does not eliminate the need for women to have contraceptive methods covered on their health insurance.
Another speaks from personal experience to make the case “why birth control pills should not be sold over-the-counter”:
I took the pill on and off for about ten years when I was in my late teens and 20s. At first, it was prescribed by a general practitioner, and then by an elderly OB/GYN. After I married, I moved to Connecticut and needed to find a new OB. I went with the closest provider listed in my insurance booklet, which turned out to be a Planned Parenthood.
Count me with you in the sanguine camp about the Hobby Lobby ruling. The hysteria over this decision baffles me, though perhaps it shouldn’t – it’s extremely easy for the media to place what happened in the context of pre-existing narratives like the “War on Women” or the nasty bigotry of the religious right than to sift through and explain complex legal reasoning. At any rate, it’s worth pointing out that most of the dissents featured here are factually wrong.
To explain why, let’s turn to Eugene Volokh’s “plain English” rendering of the majority’s decision, which might be the most helpful single explanation of what happened. The entire piece (and it’s not long) should be read, but his final point is this:
When both the government’s compelling interests and religious objectors’ religious beliefs can be adequately accommodated, Congress said (in enacting RFRA) that they should be accommodated. But Congress also said that these decisions must turn on the facts of each exemption request, and the options available for accommodating such accommodation requests. In future cases — for instance, ones involving race discrimination in employment, or insurance coverage for vaccination or blood transfusions — the result might be different.
So, let’s take a deep breath and walk through this. The reader who claimed that this decision means that “only the religious views of abortion opponents count” is wrong. They counted here because those were the people asking for an exemption. Other types of exemptions will stand or fall on their own merits, and will depend in part on how difficult (or not) such requests are to accommodate. Proceeding in this fashion is what the Religious Freedom Restoration Act requires.
This leads to a second point. Your reader who compared this to the Lawrence decision could not be more off the mark.
Below, I reflect on the astonishing success of the marriage equality movement in the last two decades. On an issue that became a must-win for the Christianist right, the American people have delivered a resounding rebuff. Think also of other profound shifts in social policy during the Obama administration: universal health insurance, to take an epic example; the shift in drug policy away from mere law enforcement; the speed with which marijuana legalization marches forward; the rise and rise of women in the economy and the academy and politics. Then consider the broad demographic shifts – the sharp increase in the religiously unaffiliated, the super-liberal Millennial generation, the majority-minority generation being born now, and a bi-racial president possibly followed by a woman president. When I see the panic and near-hysteria among some liberals in response to the Hobby Lobby ruling, I have to wonder what America they think they’re living in.
Damon Linker notes how over the long run, the religious right is still losing big – and this is the proper context to understand a ruling like Hobby Lobby:
Where once the religious right sought to inject a unified ideology of traditionalist Judeo-Christianity into the nation’s politics, now it seeks merely to protect itself against a newly aggressive form of secular social liberalism. Sometimes that liberalism takes the relatively benign and amorphous form of an irreverent, sex-obsessed popular culture and public opinion that is unsympathetic to claims of religious truth. But at other times, it comes backed up by the coercive powers of government.
That’s how the Hobby Lobby case needs to be understood: as a defensive response to the government attempting to regulate areas of life that it never previously sought to control … From advancing an ideological project to transform America into an explicitly Catholic-Christian nation to asking that a business run by devout Christians be given a partial exemption from a government regulation that would force it to violate its beliefs — that’s what the religious right has been reduced to in just 10 years.
And this is where I part company with some of my fellow supporters of universal healthcare and marriage equality. Although I disagree with Hobby Lobby’s position on contraception (I think widespread contraception is the best bulwark in modernity against the much graver problem of abortion and that sex need not be about procreation at all), I still live in the same country that they do. And in cases where values collide, I favor some sort of accommodation. Call me a squish; but I want to live in a civil polity, not a battlefield of absolutes. (As for marriage equality, I feel the same way. I just do not believe anyone’s religious freedoms are in any way curtailed by civil marriage licenses for gay people; and that no devout person’s marriage is affected either.)
Or look at it this way: with the ACA, for the first time ever, all insurance covers a wide array of contraception options.
A final step the administration could take would be to enhance access to contraception by making all forms of oral contraception available over-the-counter without a prescription (and not just “Plan B”). While this would not make contraception “free” it would reduce the cost, and help alleviate some of the non-monetary obstacles women face. As Adrianna McIntyre notes, cost is hardly the only (or even the largest) obstacle working women face when it comes to obtaining contraception. Making oral contraception available OTC might not help the 3-4 percent of women who use IUDs, but it would nonetheless expand access to contraception as a practical matter, particularly for the working poor. It also has the support of some prominent conservatives and would largely eliminate the cultural conflict engendered by the mandate.
Philosophically, it’s consistent with limited government principles. It removes unnecessary government regulations and increases choice. It doesn’t impose new burdens on businesses or religious institutions, nor does it require an increase in government health care spending.
And politically, it would also be beneficial to Republicans. It would make it a lot more difficult for Democrats to portray the GOP as being only interested in obstructing Democrats rather than supporting their own ideas, and harder to accuse Republicans of being broadly against access to birth control. Instead, it would allow Republicans to go on offense, and show that Democrats are the ones who want to play politics with birth control.
Ben Domenech, another conservative, runs through the counterarguments:
There are a number of objections to [OTC birth control], but I find them to largely amount to unconvincing paternalism.