The United States Supreme Court begins hearing arguments tomorrow in case Kathleen Sebelius, Secretary of Health and Human Services, et al., Petitioners v. Hobby Lobby Stores, Inc., et al.
The Affordable Care Act, which has survived prior challenges in the Supreme Court relatively unscathed, mandates that most employers, including the for-profit Hobby Lobby, must provide insurance coverage for contraception. Hobby Lobby, claiming that the requirement violates the company’s religious principles, has refused to comply with the mandate. Hobby Lobby’s challenge is largely based on the Religious Freedom Restoration Act of 1993 which sets a high standard that the federal government must meet if it places burdens on the free exercise of religion.
But Hobby Lobby and its supporters are wrong.
Mechanism of action of oral contraceptives
Hobby Lobby objects to the use of oral contraceptives by women because it maintains that they act as abortifacients. Of course, it that were true, they would have a case. The federal government is prohibited from funding abortion services by the Hyde Amendment. But the problem with this argument, is that oral contraceptives don’t work as abortifacients. This is a void argument.
Hobby Lobby is not entitled to the same First Amendment protections as private citizens
If Mr. Steve Green, president of Hobby Lobby Stores, Inc. wishes to stipulate that his wife and minor female children not use contraceptives, then he is free to do so without interference from the federal government. But he is not free to assert that his company has the same rights as a private citizens. Even über-conservative justice, Antonin Scalia, writing for the majority in Employment Division v. Smith understood the risk of allowing individuals and groups to circumvent the laws of the land by declaring exemption on the basis of professed doctrines. He wrote that: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
In other words, the majority’s fear in Employment Division v. Smith was that anyone could claim religious exemption to any law. Anarchy would be a foreseeable outcome. It’s not hard to imagine that one of the prosperity gospel megachurches might interpret the scripture as prohibiting income tax. This is untenable.
Contraception is a vital part of women’s health care
Some Hobby Lobby supporters maintain that the cost of contraceptives is trivial and that women should just pay for them out-of-pocket. Well, many effective antihypertensive medications are cheap, too. Why isn’t Hobby Lobby fighting against antihypertensives and antibiotics. This isn’t about cost. The cost is a smokescreen.
The World Health Organization has repeatedly emphasized the vital role of contraceptive and evidence-based family planning in the health care and economic viability of women worldwide.
Again, Hobby Lobby is not a person.
Hobby Lobby is a large retail company with thousands of employees. It is not a person. A person, the president, has strong religious beliefs - to which he is entitled. But he is not entitled to extend his beliefs to employees of the company. The US Court of Appeals for the 3rd Circuit ruled recently that “for-profit, secular corporations cannot engage in religious exercise” and thus could not invoke protection under the Religious Freedom Restoration Act of 1993.
“Just work somewhere else”
Some have argued that employees and prospective employees who don’t like the way Hobby Lobby is run can work elsewhere. After all, as a potential customer of the store, I “vote with my feet” and don’t shop there. However, with respect to employees, this is illogical. If Hobby Lobby were allowed to operate in this way, it sets up discriminatory hiring practices. Although religious organizations are permitted to freely discrinimate among its employees, secular for-profit companies are not. By claiming that the contraceptive exemption has a religious basis, then setting up a condition where only people who agree with these practices are allowed to work for the company, employment becomes conditional on agreeing with a particular set of religious beliefs. This is clearly indefensible under the law.
Furthermore, the “just work somewhere else” seriously underestimates the difficulty that persons who work at Hobby Lobby might have in finding gainful employment elsewhere.
A thought experiment
Imagine large retail company, Acme Stores, Inc. that is run by a wealthy man, Mr. James Williams who happens to be a Jehovah’s Witness. Mr. Williams, like most Witnesses, opposes the use of blood products, including transfusions. Guided by his religious beliefs, Mr. Williams refuses to allow Acme Stores to comply with provisions of the Affordable Care Act that mandate hospitalization coverage because hospitalization might entail giving blood transfusions.
What if Acme Stores were run by a devout Christian Scientist who doesn’t believe in any health care whatsoever?
Still think Hobby Lobby’s position is tenable? If not, then it’s a reasonable bet that their motivation isn’t about protecting their free exercise of religious belief and practice, but about controlling women. The only difference between the real scenario presented by Hobby Lobby and its fictitious counterparts is that the latter harm men and women equally, whereas the former uniquely targets women.
Almost certainly, knowing Justice Scalia, his opionion had much to do with the fact that the plaintiff in this case was a Native American wishing to use peyote in his religious ceremonies. Had the plaintiff been of a mainstream group, I suspect Scalia might have found differently. ↩
United States Court of Appeals for the Third Circuit, Conestoga Wood Specialties Corporation et al. v. Secretary of the United States Department of Health and Human Services, et al. Text of the ruling ↩