The Hobby Lobby decision has been all over the news and it seems like everyone has an opinion on it (few people bothering to read the actual opinion from the Supreme Court). Despite many messages from you asking my thoughts, I haven’t written about it for several reasons.
[mainbodyad]I believe this is a case that never should have been brought in the first place because it is a symptom of fact the American system is anachronistic. It is irrational to tie health benefits to employment. The idea that you have to completely rework your medical life if you move from IBM to HP is a stupid way to run the civilization. Worse, if one faces a layoff or downsizing, it means you are most vulnerable medically at a time when you are also most vulnerable financially, leading to greater instability in the system.
In addition, the United States spends more per capita on health care than practically anywhere in the world, yet we get far less in goods and services in return because it’s a model where traditional capitalism can’t work due to the monopoly nature of the health care provider (e.g., if you have a heart attack, you can’t shop for the best customer service or lowest cost producer to determine which ambulance responds to the call). This has resulted in a bastardization of the free market with all of the costs and none of the benefits.
Stated another way, this is a case where the conflict itself only arises due to a structural flaw in the existing health care system. The conflict is not inherently part of the human condition where two competing rights must fight it out until one is subjugated to the other, as is the case with employment or public accommodation laws (e.g., a white restaurant owner in Mississippi refusing to serve a black customer in 1962). The best solution is not to declare a winner but to remove the conflict entirely.
Since the Supreme Court doesn’t have the power to do that, this confluence of events led it to a situation where it was required to settle a statutory dispute between two different Federal laws – the Affordable Care Act and the Religious Freedom Restoration Act. Both sides are engaging in round of hyperbolic carpet bombing, acting as if it were some sort of epochal struggle between the forces of good and evil. That’s nonsense. It was a boring technical decision sorting out conflicting laws in which there was no correct legal answer. An intellectually honest person could have ruled in favor of either party and supported the decision with well-reasoned precedent. Anyone who thinks otherwise is biased by their own prejudice.
[mainbodyad]I find myself agreeing with Justice Kennedy in that the decision was not some grand constitutional question pitting reproductive choice against religious liberty (that’s an important distinction – the court didn’t find there was a fundamental right to deny birth control, only that Congress had written laws that weren’t in agreement with each other and needed to be sorted) because it is so narrowly drawn it is painful. While all sorts of folks will try to use this to justify other exemptions, it will likely get them nowhere.
Regardless of how it turned out in the end – and, again, it was not a fundamental rights ruling so it can easily be changed with Congressional action – the practical effect of the case is negligible. Those acting like this is some sort of unprecedented attack on women are overstating the damage. Roughly 1/3 to 1/2 of all workers in the United States are employed by businesses exempt in some capacity from the contraception mandate either due to grandfathered status or working for an employer with fewer than 50 staff members. Those who want it can easily get it. According to Planned Parenthood, birth control costs $15 to $50 per month. Median household income in this country is $52,000 per annum. We’re talking about less than the typical family spends on tobacco in the same time period! There is no meaningful burden. In America, no one who seriously wants birth control, be they male or female, goes without it. Even if you earn minimum wage and have no health insurance, it is not some Sisyphean task to get your hands on contraceptives.
Likewise, those acting like the Green family at Hobby Lobby are some sort of saints standing up for religious freedom are naive. Hobby Lobby specifically claimed products such as Plan B, Ella, and IUDs violated their religious beliefs so they shouldn’t have to provide them to their workers. Yet, around the same time, Hobby Lobby had $73 million of its 401(k) assets in mutual funds that held shares of the manufacturers of those “evil” products! As quoted in this Forbes piece:
These companies include Teva Pharmaceutical Industries, which makes Plan B and ParaGard, a copper IUD, and Actavis, which makes a generic version of Plan B and distributes Ella. Other stock holdings in the mutual funds selected by Hobby Lobby include Pfizer, the maker of Cytotec and Prostin E2, which are used to induce abortions; Bayer, which manufactures the hormonal IUDs Skyla and Mirena; AstraZeneca, which has an Indian subsidiary that manufactures Prostodin, Cerviprime, and Partocin, three drugs commonly used in abortions; and Forest Laboratories, which makes Cervidil, a drug used to induce abortions. Several funds in the Hobby Lobby retirement plan also invested in Aetna and Humana, two health insurance companies that cover surgical abortions, abortion drugs, and emergency contraception in many of the health care policies they sell.
To verify it for yourself, pull the disclosure documents, check out Schedule H, then use the SEC filings to research the names of the individual companies held by each fund.
Normally, I wouldn’t find this worthy of mention except for the explicit arguments the Greens used in front of the court. Even though the contraception mandate didn’t require them to actually purchase contraception, merely opt for an insurance provider that offered it (as all new plans do under the health care reform act), and even though the employees were contributing their own out-of-pocket money to their health insurance costs, and even though the employee is the one who gets to make the allocation decision about which services she uses, including contraception, the Green family argued that this was not sufficiently attenuated; that this second or third order potential purchase of contraception by an employee, partially with her own money, was no different than they themselves facilitating an abortion. It’s the standard they themselves set when limiting their employee’s options. It seems only fair they be judged as prescribed in Matthew 7:2: “For in the same way you judge others, you will be judged, and with the measure you use, it will be measured to you.” If they want to be held responsible for decisions their employees make partially with company funds based on providers they arrange, the mutual fund assets are fair game.
Otherwise, it’s a strange world one must live in where it’s not okay to offer contraceptives to your employees in compliance with Federal law but it’s totally cool collecting profits from selling those exact same products to others. One would almost be tempted to think they were motivated not by what they believed God wanted, but rather, their pocketbook. (At the very least, they could have pulled a Numbers 5:12-31 defense, which many theologians believe is one of the oldest abortion rituals recorded in human history, presumably sanctioned by God Himself and given to Moses. If you believed your wife cheated on you but had no evidence, you take her in for the trial. If she did, the Lord would cause her to miscarry, the child die within her, and make her womb dry up so she became barren. Or, better yet, an Exodus 21:22-25 defense. The most direct translation is something like: “If people are fighting and hit a pregnant woman and she has a miscarriage, the offender must be fined whatever the woman’s husband demands and the courts permit. But if the woman is seriously injured, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.” A fetus was worthy of only a monetary fine, not the death penalty like everyone else, indicating it was not entitled to full personhood. A few years ago, this made some of the editors of the newer translations uncomfortable given the political beliefs of their core customers in the United States so they all but outright lie in the recently published editions and changed the wording to something like “deliver early”; e.g., see post-2011 printings of The New International Version for the inaccurate text.)