The hysterical response to the Hobby Lobby decision has been pretty predictable. My pokey little blog won’t do much to correct the rampant misperceptions out there, but I’ll share a few thoughts all the same.
1) What we see in the reaction most of all is predictable demagoguery. Expect another round of the ludicrous “war on women” charges. As a cue that this is coming, 4 of the 5 first articles I read on the decision made a point of noting that the majority was all male. But demagoguery is, by definition, thin on fact and argument. Almost every liberal who has spoken on on the decision is flatly misinformed (from Obama and Hillary on down to the equally superficial and outraged Facebook responses). The demagoguery of the responses has been amazing, even by the standards of contemporary political discourse. You get plenty of “don’t let bosses make health care decisions” to the more extreme “this takes us closer to a time in history when women had no choice and no voice” (Senator Patty Murray). I guess Dems are hoping that completely irrational scare tactics are the best way to get women to the polls.
So let’s clarify a few things:
First of all, employees of Hobby Lobby are still free to choose to use these drugs. The Supreme Court just found that their employer is not obligated to pay for them. There are plenty of other ways to get these drugs, and if it is important enough the govt could decide to provide them itself.
Second – and this is perhaps the most brazen error of those on the left commenting on the decision – Hobby Lobby employees will still have access to contraception through the company’s own health plan. Hobby Lobby did not object to contraception per se, but only to 4 of the 20 available types of contraceptives. Their objection had nothing to do with contraception. Rather, they did not want to pay for drugs that can be abortion inducing. Hobby Lobby will continue to pay for most of the available contraceptive drugs and devices and has no moral qualms with doing so.
They do have a moral qualm with paying for drugs that are sometimes abortion inducing. Most who claim these are not abortifacient do so by changing the definition of pregnancy. Those claiming these drugs are not abortifacient are playing semantics, suggesting that pregnancy does not begin until the fertilized egg is implanted in the womb. But consult any embryology textbook and they will all agree that human life begins at conception. Yes, the pro-plan B lobby has some medical groups on its side, but notice the language of the American College of Obstetricians and Gynecologists in their response to the question: “Emergency contraception will not disrupt an established pregnancy” (emphasis added). Sometimes these drugs do function as contraceptives, meaning they prevent fertilization. But they can also prevent implantation (prevent a pregnancy from becoming “established”). This is listed on the label of these drugs as a possible outcome, and the FDA lists it as a possible outcome. So the makers of the drugs and the FDA think these can prevent implantation of and destroy a human embryo, which is a unique human individual (we could debate whether it being a unique human individual is sufficient for it having claims to personal rights).
I should say that there is some debate on whether these 4 contraceptive drugs and devices are, in fact, abortifacient. Some claim that the drug manufacturers themselves and the FDA are misunderstanding how the drugs work, and they cannot in fact prevent implantation. If that was definitely shown to be true, then the drugs would not be abortion inducing I would expect that Hobby Lobby would provide coverage for these drugs and devises (since the owners of the company do not object to contraception). But as it stands, the belief that these 4 drugs can lead to the destruction of a human embryo is not irrational, nor is it even a religiously informed belief. It is just going by what the drug manufactures and FDA say. The belief that abortion is immoral is also not necessarily a religiously informed belief, but supposing it is the Supreme Court found that it was a protected belief for those who own for-profit companies just as much as those who run not-for-profits.
2) Many are upset by the finding since they see it as an extension of another finding they disliked – the Citizens United decision that granted corporations (and labor unions and other associations) freedom of speech (which includes the spending of money to disseminate that speech). The left was in an uproar over this. I can understand why, there are plenty of reasons to worry that big money controls too much of our politics. But the principle in the finding was sound. The New York Times is a for profit corporation – shouldn’t it have freedom of speech protections? The majority in that case decided that it was not obvious how you would distinguish a press corporation from a non-press corporation, and erred on the side of protected speech. That seems like a good idea to me. First amendment protections should not stop just because commerce and trade is involved.
After all, what is a corporation but a legal entity (functions as an artificial person) which is created by natural persons to pursue various ends. A corporation can be started for many reasons – profit reasons, moral reasons, family reasons, etc. A corporation is a way for real people to engage their personal interests and concerns in the public square. To restrict corporate speech is to restrict the speech of people.
So this case is, then, Citizens United but with the free exercise of religion. The majority found that the Religious Freedom Restoration Act (which was passed unanimously by the House and 97-3 in the Senate and then signed into law by Bill Clinton), applied to for-profit business just as much as non-profit. And why shouldn’t it? Any corporation, for or not-for profit, can be formed to pursue any number of ends of the persons creating it. When those corporations are “closely held”, the connection between the legal entity and the interests of the natural persons who organized it is very strong. It is worth noting that two of the dissenting justices appear to agree that RFRA applies to for-profit businesses, since Breyer and Kagan did not, as did Ginsburg and Sotomayor, explicitly reject that part of the majority decision.
The majority found that the state, presuming it has a compelling interest in guaranteeing coverage for these few contraceptives, could have found a way to satisfy that interest that was less burdensome on the freedom of religion of the Greens and Hobby Lobby. For example, the government could provide those drugs and devices to the women itself, if it so wished. And the requirement was burdensome – if the Green family had refused to offer those 4 drugs, they would have faced fines of $475 million a year. As Alito pointed out, if that is not a substantial burden, then what is? I have to say, the finding seemed pretty reasonable on all of these counts.
3) But this raises a broader question about contraception, including contraceptives that are not abortion inducing. Supposing there is such a thing as having a right to health care, do you have a right to contraceptive coverage as part of your health care? I would say no. Why? Because the capacity to become pregnant is not a disease and so contraceptive drugs used for the purposes of contraception are not medical treatments. I am so tired of the misnomer, so oft repeated that no one questions it, that contraception (and abortion) are part of “health care”. That is rarely the case (only 14% of women use contraceptive drugs for non-contraceptive reasons). And, I hasten to add, any Catholic company or hospital would happily provide contraceptives for medical reasons. Let’s look back to Humanae Vitae on this point. “15. On the other hand, the Church does not consider at all illicit the use of those therapeutic means necessary to cure bodily diseases, even if a foreseeable impediment to procreation should result there from—provided such impediment is not directly intended for any motive whatsoever.” In other words, if a woman needs the pill for a legitimate medical reason (treatment of uterine fibroid tumors, etc), a Catholic hospital or insurer would provide that care. In that case, the contraceptive effects of the pill would be an unintended “double effect” and so morally licit. So there plainly is no “war on women’s health” being waged here. What self-insuring Catholic entities simply wish to do is to refuse to pay for non-medicinal “lifestyle” uses of birth control that it deems intrinsically wrong.
But all of those points are for another day – when the Court decides whether or not associations like the Little Sisters of the Poor have to provide contraceptive coverage (abortifacient or not). What might cool some heads over the Hobby Lobby decision would be the recognition that, in fact, this case had nothing to do with contraception at all and Hobby Lobby employees will still be provided contraceptive coverage. Will that recognition lead to a more measured response? Probably not, the “war on women” demagoguery is just too attractive.