What Hobby Lobby Hath Wrought

In her dissenting opinion last June, Ruth Bader Ginsburg warned 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:

If we consistently apply the principle that corporations are not entitled to constitutional rights because they are not real people, then the government would be free to censor newspapers and TV stations that use the corporate form, including the New York Times and CNN. Similarly, it would be free to take corporate property without paying the “just compensation” required by the Fifth Amendment, or search it in ways that would otherwise be forbidden by the Fourth Amendment’s ban on unreasonable searches and seizures. It could also regulate or ban services at houses of worship owned by the many religious organizations that use the corporate form. CNN, the New York Times, and the Catholic Church are no more “real” persons than Hobby Lobby Stores is. …

Had the Court ruled that either corporations in general or for-profit ones specifically cannot “exercise religion,” it would have led to the gutting of legal protection for religious freedom in numerous commercial contexts.

Meanwhile, Dawinder Sidhu points to an upcoming case, Holt v. Hobbs, which “will test whether the Roberts Court’s stance on religious freedom includes a minority faith, Islam, practiced by a disfavored member of our society: a prisoner”:

Holt involves Gregory Holt, an inmate in Arkansas also known as Abdul Maalik Muhammad. A dispute arose between Holt and the state’s Department of Correction when he sought to grow a one-half-inch beard in observance of his faith. According to the department’s grooming policies, inmates may only grow a “neatly trimmed mustache.” …

If Hobby Lobby and federal law are faithfully applied, Holt should prevail. Prisoners surrender many of their rights at the prison gates. “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights,” the Supreme Court wrote in Price v. Johnston more than 60 years ago. In 2000, however, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) to help safeguard inmates’ religious freedom. The law states that the government may not place a substantial burden on a prisoner’s ability to practice his or her religion unless that burden is the “least-restrictive means” to achieve a “compelling” goal.

A Hobby Lobby Patch For Obamacare

by Dish Staff

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 U.S. Conference of Catholic Bishops said it’s worried that the administration’s proposal could limit which for-profit businesses can receive a religious exemption. “By proposing to extend the ‘accommodation’ to the closely held for-profit employers that were wholly exempted by the Supreme Court’s recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom,” the group’s statement read.

Charles Pierce expected as much:

After all, the opposition to birth control is not based on the opposition to a government mandate. It’s based on the opposition to the medicine, and the purpose that medicine serves. The question being litigated — in public and, sadly, in the courts — is not constitutional. It’s theological. The essential text is not the Constitution. It’s Humanae Vitae.

Scrutinizing how this rule change will adjust the terms of the debate over the mandate, Marty Lederman argues that the religious objectors have few legal legs left to stand on:

The regulation does not require the organizations to contract with an issuer or a TPA–and if they do not do so, then the government currently has no way of ensuring contraceptive coverage for their employees.  But even if that were not the case–i.e., even if federal law coerced the organizations to contract with such an issuer or TPA–Thomas Aquinas College and the other plaintiffs haven’t offered any explanation for why, according to their religion, the College’s responsibility for this particular match between TPA and employees would render the College itself morally responsible for the employees’ eventual use of contraceptives, when (i) such employees would have the same coverage if Aquinas had contracted with a different TPA; (ii) such employees would continue to have coverage if they left the College; and (iii) the College itself does not provide, subsidize, endorse, distribute, or otherwise facilitate the provision of, its employees’ contraceptive services.

Be that as it may, it appears that this will now be the primary (if not the only) argument the courts will have to contend with in light of the government’s newly augmented accommodation.

And Jonathan Cohn wonders what the Supreme Court will make of it:

With Hobby Lobby, the justices implied strongly that the old workaroundthe one the Administration was already providing churches and the likewas acceptable. With Wheaton, the Court said that, no, asking employers to write a letter to insurers infringed upon their religious freeom. That’s what made Justice Sonya Sotomayor and two of her colleagues angry enough to write a blistering dissent: The second directive seemed to undermine the spirit of the first. With this new regulation, the Administration is basically calling the Court’s bluff, as Ian Millhiser puts it at ThinkProgressto force the Court, once and for all, to decide whether any workaround passes muster or if the contraception requirement itself is simply unacceptable.

Why Many Liberals Are On Edge Over Hobby Lobby

The pro-life movement is surging at the state level:

Monday’s Hobby Lobby decision 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.

Dissent Of The Day

A reader writes:

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 Supreme Court Rules In Favor Of Hobby Lobby In ACA Contraception Caseabout 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.

One wonders, as Ginsburg wrote in her dissent, if the Justices would apply these sentiments to non-Christian religions. I noted the burqa ban in France as a distant analogy, but Steve Coll goes one further and imagines a fanatical Muslim corporation asking for the equivalent rights, as in, say, exemptions from vaccines. And here is where Alito is at his weakest. His only proactive response to this is to assume that there will not be “a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions.” As Coll, rather drily observes: “Why not?” The religious convictions of many Muslims go far deeper than most evangelical Protestants and devout Catholics.

But here’s where I stick with my point about perspective. In the last few years, America has crossed the Rubicon of universal health insurance. In that new law, contraception coverage was, for the first time, mandated for anyone with health insurance. That strikes me as a huge gain – not just for those women who could not afford insurance before but for those women with insurance, where contraceptive coverage could be at the whim of employers. And when government mandates something, it will get always get some petitions for exemptions. We’ll see in due course – and the Dish will keep close tabs on – how big a loophole it turns out to be. But if the administration can deploy the fix used for religious organizations proper – getting insurance companies to provide the contraception and then get re-imbursed by the government (see here for the difficulties involved), then we could easily have a win-win. Everyone gets guaranteed contraception coverage and a few religious closely-held corporations can keep their hands “clean”.

And let me suggest something else about toleration of these religiously-based companies. It will hurt them in the long run. What Hobby Lobby has now announced to the world is that women who use contraception shouldn’t work there if they don’t want to live in a hostile environment, and no one should buy goods there if they object to their policy targeting women’s healthcare – and women’s alone – for discrimination. A company that behaves this way is a company that will lose customers and potential employees. The positive way to respond to this is to stop shopping there and to seek employment elsewhere. You can even boycott if you wish. Since the vast majority of women, including overwhelming majorities of Catholic women, don’t agree with the ludicrous case against contraception, it seems to me that this kind of policy will not be in the interests of any company trying to make a profit. That’s how a free society works.

One final thing: Can I respond to the emailers who say the only reason I am not too alarmed by the Hobby Lobby ruling is because I’m a man, and not a woman? I sure hope that isn’t the case. I’ve long been a libertarian type of conservative, and have long had much higher tolerance for people doing bad things in a free society than some others. So to take the very personal question of homosexuality, I have defended the right of the Boy Scouts to discriminate against gays, I have defended the right of the Saint Patrick’s Day Parade to exclude gays, I oppose hate crime laws protecting gays, and I have even theoretically opposed anti-discrimination laws in employment for gay people (and plenty others). This does not mean that I approve of any of those things – I despise them all, in fact. But in a free society, religious fanatics and bigots have rights as well. I would not have given Hobby Lobby what SCOTUS just did, but I sympathize with the principle involved, and prefer a limited government in a free society over a powerful government in a more just one. And a free society must mean religious freedom sometimes in contravention of established norms. That’s what freedom requires. And we are a stronger country for it.

(Photo by Scott Olson/Getty Images)

The Workaround That’s Not Working Yet

Well this complicates things:

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.

Rick Warren Wants You To Pay Him To Discriminate Against Gay People

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:

The existing federal contractor executive order bars federal contractors who do more than $10,000 worth of federal work in a year from discriminating on the basis of race, color, religion, sex, or national origin.

If the federal government prevents any group – say a secular charitable organization – from discriminating against evangelical Christians, why should it allow discrimination against gay people? Why should one group be protected and another left to the tender mercies of discriminating employers? It seems to me that if the Christian right wants to re-position itself as a minority that deserves federal protection, it should also agree that other minorities qualify. And that includes gay people.

Why Not Just Provide The Pill Over The Counter? Ctd

A reader writes:

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 overthe-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.

I have a history of migraine with aura.

I don’t get severe migraines as these things go, and I don’t get them frequently. Like 1/3 of migraine sufferers, however, I get weird symptoms that precede the headache – mine are visual and include flashes and zigzags of light, which is typical. According to a quick google search, 5-10% of women of childbearing age have migraine with aura, so this is hardly an exotic diagnosis.

The doctor at Planned Parenthood took the time to review my medical history. She started asking probing questions about having checked the box for “migraines” on my medical history form, which seemed bizarre to me. And then she told me she would not be renewing my prescription for the pill. While the absolute risk is still comparatively low, women who have a history of migraine with aura have a greatly increased risk of stroke if they take the combined pill (meaning the pill with both estrogen and progesterone; the vast majority of women on the pill take the combined pill).

I thought she was crazy until I went home and googled it, and she was absolutely correct. The WHO unequivocally states that women with a history of migraine with aura shouldn’t take the combined pill. Women with a history of migraine with aura can safely take progesterone-only versions of the pill, but those are less effective.

The pill is a drug. Drugs have side effects and risks. These risks are greater for some of us than others. When a drug is sold over the counter, people tend to assume the risks are minimal, and with the pill, this isn’t the case.

Update from a reader, who responds to that last paragraph:

So let’s put it behind the counter and have pharmacists dispense it. Thanks to credential creep, American pharmacists get almost as much training as doctors. Every drugstore has a licensed pharmacist but they have little practical authority to use that training. Their two main jobs are to catch doctor screw-ups and to waste your time waiting for them to check with you that yes, you have been on this medication for ten years.

Why not use the pill as a wedge to introduce the intermediate class of drugs between prescribed and OTC that most Western countries have? It’d eliminate a lot of unnecessary med-maintenance appointments with physicians, increasing capacity and lowering costs.

Perspective, Please, Ctd

A reader writes:

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:

Supreme Court Issues Rulings, Including Hobby Lobby ACA Contraception Mandate CaseWhen 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.

That case dealt with matters of constitutional interpretation – it established a precedent in the fullest sense of the term by saying what liberty and privacy meant under the Due Process Clause of the 14th Amendment. As such, its impact really has been sweeping, because when you say what the Constitution means, you provide a standard against which to judge any particular federal or state law. The Hobby Lobby case, on the other hand, dealt with a statutory question – interpreting a law passed by Congress. It makes no big claims about the meaning of religious liberty, or what the First Amendment demands in situations like Hobby Lobby’s. If Congress repealed the RFRA tomorrow, the basis for this exemption would be removed.

Similarly, the reader who panicked that Alito “didn’t actually shut the door on another closely held company making an RFRA claim that mandatory coverage of blood transfusions or vaccines abridges religious freedom” doesn’t know what he or she is saying. Alito couldn’t do that, because, again, the RFRA requires the courts, as Volokh put it, to “sort through religious exemption requests” as they are made. Without the facts of those possible exemption requests, the Court really can’t say much about them. In the future, closely held companies can ask for whatever exemption they want – how you could forbid exemption requests, ahead of time, from simply being made is beyond me – and those requests, again, will be dealt with at that time according to the particulars involved, from the nature of the burden imposed to the reasonableness of the accommodation sought.

I’m convinced most of the people wetting themselves over this decision are doing so because, in their ignorance, they assume all SCOTUS decisions are like Lawrence or Windsor or some other “big” decisions on hot button issues that render a judgment on what the Constitution means. Hobby Lobby was not that type of decision.

Another reader:

Some of the comments regarding the Hobby Lobby decision seem to be driven a bit by emotion and ideology than a understanding of precedent. One reader wrote:

In that majority opinion, Justice Scalia said Smith had no constitutional right to exercise the religious practice in question (use of peyote in a Native American ritual). Or rather, he said the state of Oregon’s interest in preventing abuse of peyote outweighed Smith’s religious freedom.

That’s not the best way to characterize the decision of the Court in Smith v. Oregon.  The litigants in the case were denied unemployment benefits because they were fired from their jobs as drug counselors for the use of peyote in religious ceremonies.  Because they were fired for job-related misconduct, they couldn’t collect the benefits.  The Court held that this generally applicable law would not consider an exception for this religious practice.

Scalia and the Court resurrected what is often called the belief action distinction or dichotomy. Simply, this means that the First Amendment allows individuals to believe what they wish.  But religious activities could be regulated as long as the regulation was neutrally applied.  So the Court did not declare they litigants had no right to exercise the religious practice in question.  They just couldn’t collect unemployment benefits.

Now you can certainly argue that “neutral” laws might prove disadvantageous for minority groups.  But if RFRA had not been passed by Congress as a remedy to this decision, you would need only to apply the Court reasoning in Smith.  Was the ACA a neutrally drafted law?  Likely the Court would have rules yes – the ACA was not passed to force devout Christians who abhor abortion to allow contraceptive practices that seem to promote the end of fetal life.  Hence, Hobby Lobby may have lost today (if of course the Court was consistent).  Hobby Lobby would not have been granted an exception to a neutral law.

But RFRA was passed by Congress to allow for the devout to avoid having to follow general laws of neutral applicability.  RFRA demands that the Court evaluate whether there  has been a substantial burden on the Free Exercise of religion.  If the answer is yes, Congress needs to demonstrate a compelling justification for the burden that is narrowly tailored.  Alito suggested that there was a compelling justification.  But then he argued that the ACA did not use the least restrictive means (narrow tailoring) to fulfill the compelling interest.  Remember, the Court noted that if the federal government wants to provide the benefits, it can.  In that regard, Hobby Lobby still loses. Also remember, the Court was conducting statutory interpretation here – not constitutional interpretation.

The other issue to keep in mind is that in recent years, the Court applied the Free Exercise clause to protect minority religions at the hands of minorities, including Santarians and those who import hallucinogenic for religious ceremonies.

(Photo: Supporters of employer-paid birth control rally in front of the Supreme Court before the decision in Burwell v. Hobby Lobby Stores was announced June 30, 2014 in Washington, DC. The high court ruled 5-4 that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violated a federal law protecting religious freedom. By Chip Somodevilla/Getty Images)

Perspective, Please

Supreme Court Issues Rulings, Including Hobby Lobby ACA Contraception Mandate Case

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.

That’s a huge step forward for social liberalism, and it was allowed by the Roberts court. A few organizations and closely-held companies want to be exempted from that coverage for religious reasons. They just got it. The administration can still respond by crafting a compromise along the lines of that given to purely religious groups, or by other methods. Yes, there’s a precedent here that could be expanded. But, as Ross notes today, Kennedy’s concurrence suggests not by much. And overall, this battle has been decisively won by secular liberals and their allies (who include many religious people as well). What’s really being done here is negotiating the terms of surrender. And in general, I think victories are more durable if they are allied with a certain degree of magnanimity.

You can read countless screeds against this decision, for example, that nowhere even mention that for some devout people, the mandate might actually be a genuine problem of conscience. Is liberalism indifferent to the conscientious dissent of minorities? The truth is: I don’t think so. But many cannot yet see that the religious right is no longer a majority, fast becoming a small minority, unable to win at the ballot box, and needing some accommodation with respect to majoritarian rule.

That used to be a liberal value. And I hope, before too long, it will again.

(Photo: Supporters of employer-paid birth control rally in front of the Supreme Court before the decision in Burwell v. Hobby Lobby Stores was announced June 30, 2014 in Washington, DC. By Chip Somodevilla/Getty Images.)

Why Not Just Provide The Pill Over The Counter?

Jonathan H. Adler considers the question:

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.

One such conservative is Philip Klein:

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.

The chief argument advanced is that standard oral contraceptives mess with hormones and have all sorts of side effects. This is, of course, true! But: dangerous side effects are rampant within all sorts of other over the counter drugs. Women can think for themselves and make decisions with their doctor and pharmacist about what drugs they want to take – and the evidence shows they are good at self-screening. In fact, it would actually increase the ability to mitigate and respond to unanticipated side effects, since changing tracks will no longer require a doctor’s visit and getting a new prescription. Assuming that women won’t or can’t take responsibility for themselves to consult with a doctor unless required to by arbitrary government policy is absurd.

Allahpundit spotlights one of the idea’s most vocal supporters:

Bobby Jindal, who’s wooing religious conservatives ahead of 2016, has been pushing [the OTC pill] since 2012.  … Congress could, as Jindal suggests, even adjust Health Savings Accounts so that they include OTC medicines, which would further reduce the financial burden. And politically, it would complicate the Democrats’ dopey “war on women” messaging by decoupling the contraception debate from the debate over abortion. How do you push a “Republicans don’t believe in reproductive freedom” message if GOPers like Jindal want to make the pill OTC?

But the best endorsement comes from the OCOG:

In the United States, the proposal to sell oral contraceptives over the counter has been endorsed by the premier body of relevant experts, the American Congress of Obstetricians and Gynecologists. Ultimately, though, the decision will be made by the FDA.

So why the holdup? Elizabeth Nolan Brown has a must-read:

“Doctors regularly hold women’s birth control prescriptions hostage, forcing them to come in for exams,” wrote Stephanie Mencimer in a Mother Jones piece about her own doctor doing so. Dr. [Jeffrey] Singer described as it doctors extorting pay for a “permission slip” to get the same medication over and over again. Feminist blogger Amanda Marcotte says doctors use “the pill as bait” to make sure women come in once a year. Both doctors and public health officials publicly worry that women won’t receive annual cervical cancer and sexually transmitted infection (STI) screenings without such coercion. How much of this concern is motivated by profit, how much by paternalism, is hard to say. …

It’s not just some doctors and medical groups who want to keep things status quo. Pharmaceutical companies also gain from it. OTC sales “would drive down the prices substantially,” says Singer. Drugmakers can get higher prices from insurance companies than they could in a competitive contraceptive market. … Yet the pharmaceutical industry is the only entity with standing to challenge the prescription status of current birth control pills. In order to initiate the switch from prescription to nonprescription, a drug maker must approach the FDA.