Tuesday, July 01, 2014

Hobby Lobby: A Response to that Mother Jones Article

My friend, Chad Howard, wrote the following words on Facebook last night in response to one of the more widely shared articles after the Hobby Lobby verdict. When I told him he should post it on a blog, his wife suggested that he guest post on my blog, and I thought that sounded like a good idea, so here we go:

I've been seeing this article going around Facebook this evening, and I can't help but find almost every item either factually incorrect or simply mistaken. A note on several of them:

1. "The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers' beliefs access to contraceptive coverage."

This returns us to the policies of 2012. Was there a massive lack of access to birth control in 2012? If not, this assertion doesn't hold a lot of persuasive power. More to the point, Justice Alito addressed this in his opinion for the majority on the Court: "the effect of the HHS-created [nonprofit] accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.” In other words, the government already funds birth control for women not covered by their employers' plans.

2. "Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community."

This is correct, but not relevant (or a problem). The legal system has been dealing with this reality already for decades, with no major problems cropping up. This is a recurring problem for Ginsburg's "parade of horribles" (as Alito refers to it). The Religious Freedom Restoration Act (RFRA) has been a part of policy for decades now, and no great systematic problems have arisen around the country. It's just not a thing that has been happening (or is likely to suddenly start).

3. "Any decision to use contraceptives made by a woman covered under Hobby Lobby's or Conestoga's plan will not be propelled by the Government, it will be the woman's autonomous choice, informed by the physician she consults."

But the employer will be paying for it. That was the focus of the whole case. Not access; that's already widespread and fairly cost-efficient for most Americans. The only focus was who would be paying for it (or who could be compelled to by force of law).

5. "Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today's decision."

This is especially noteworthy as a good example of the "parade of horribles technique. First, please note that the RFRA *already applies* to these things, and there hasn't been an epidemic of these requests. When they're made, the government simply makes an analysis of how to best accommodate everyone involved. The questions that would be considered would be things like: Does the employer have a sincere religious objection to facilitating this for someone else? Does the regulation serve a compelling interest? Does it impose a substantial burden on the employer's beliefs? And is there a way to serve that interest while imposing a lesser burden?

It bears repeating, the reason the government lost this case was not because any religious claim trumps all else. It was specifically because they could not show that forcing every employer to pay for contraceptives was the least burdensome course available to them to achieve the goal of providing contraception to people who want to obtain it. I find it really hard to argue otherwise.

6. "Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude."

This is exactly what the Court has decided to NOT do with this ruling. If they had ruled that all employers have to just do whatever they're told to do, that would be "approving some religions claims" over others. They have, rather, taken the appropriate step of saying that they will not decide which ones are better than others, but leave that up to the individual consciences of people. This is exactly, in my view, the correct course of action.

Chad and his wife, Jennifer

I met Chad when we were both working on our Master of Arts in English degrees at the University of Louisville back in 2008-2009.

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