Sebelius v. Hobby Lobby

The Supreme Court heard oral arguments yesterday in the case of Sebelius v. Hobby Lobby. This case concerns whether the federal government can force an employer to provide birth control to their employees. Hobby Lobby is claiming it violates their Freedom of Religion and the Religious Freedom Restoration Act to force them to pay for a service they have a moral objection to.

You can read some legal analysis from Mataconis and a series of posts from Stephen Bainbridge. It looks like the Court is leaning in favor of Hobby Lobby, perhaps with a narrow ruling that only addresses this particular issue.

There are two things I wanted to note about this, however.

First, I tend to side with Hobby Lobby on this one. My support has little to do with birth control and everything to do with opposing coverage mandates. Coverage mandates drive up insurance costs and provoke these kind of bitter arguments. It’s bad enough that the government is forcing people to provide or buy insurance. Why must it insist on specifying what the insurance will cover?

The potential for abuse is very high here. What’s to prevent some moonbeam President from mandating coverage for pseudo-scientific gibberish like therapeutic touch or aromatherapy (as indeed, some Senators tried to do and some states actually do)? What’s to prevent a future President from forbidding birth control coverage, especially given the precedent this President has established for ad hoc rewriting of the law? It’s bad enough that employers can control our healthcare. Many employers are now mandating “wellness” programs and the like. Must we let the politicians do it too?

Frankly, I’d prefer the Court strike down coverage mandates in general but they are not going to make such a broad ruling.

But second, this is another reminder that although I side with the Left on a number of culture issues, I am never very happy about the company I keep. The Left Wing, with the sympathetic media in lockstep, has responded to the Hobby Lobby case with a barrage of lies about the case, the law and birth control that is really despicable. They are desperate to pretend that, if Hobby Lobby wins, this means the end of birth control. But it does not:

The New York Times’ Adam Liptak puts it right there in the first sentence: “The Supreme Court on Tuesday will hear arguments in a case that pits religious liberty against women’s rights.” This could not be further from the truth. Women will have the same constitutional rights to acquire and use contraception regardless of whether Hobby Lobby wins or loses. More than that, they’ll have the exact same rights as they had before the contraception mandate was a gleam in Sec. Sebelius’ eye. What women won’t have is the right to force other people to pay for their contraception, but that has never been a right recognized by the Supreme Court.

In the Bizarro World of the newspapers, not paying for someone else’s contraception is the same thing as prohibiting them from purchasing and using them themselves. This is an obviously false equivalence, but one that leftists are bent on telling themselves. No matter how many times you point out that the business owners in these cases aren’t preventing their employees from purchasing and using contraception, a smug leftist will smile and say “but women’s rights, you see,” as if these magic words excuse the lie.

Opponents of Hobby Lobby say that, if the Court decides in their favor, this will allow employers to “impose their morality” on their employees. But there is no such imposition. Hobby Lobby can not stop their employees from buying birth control. They can’t stop them from having sex. They can’t stop them from having gay abortions while smoking pot and watching Girls.

So why is having to pay for your own birth control oppression? Because the Left Wing has convinced itself that healthcare is a right, that health insurance is a right and therefore, if your employer refuses to pay for any healthcare service, they have deprived you of that right.

I find this view absurdly childish. This isn’t heart surgery we’re talking about; this is birth control, which is available for a few hundred bucks a year for most women and can be replaced cheaply with condoms or withdrawal or abstinence. Claiming that you have been “deprived” of birth control because someone else won’t pay for it is no different than claiming you’ve been deprived of electricity because you have to pay your own electric bills (which are, incidentally, usually more expensive than birth control).

If the Democrats are so passionate about birth control, why don’t they create a government program to provide it? I would oppose such a program, but it would likely be constitutional. Of course, they could never get such a program through the legislature. So they have to resort to the back door of forcing other people to pay for it.

Let me be clear. If I ran a business, I would choose insurance that included birth control coverage. I think employers should include it, although bringing birth control into the insurance sphere will likely drive up the cost of it for everyone. But there is a distinction between thinking something should be done and decreeing that it must be done, a distinction that seems lost on the Left Wing.

I would also point out that the “employer imposing their morality” argument only applies in this case. As Bainbridge points out, corporations debate morality all the time — whether to do business with sweat shops, whether to go green, whether to provide daycare, how much maternity leave to provide, whether to divest their funds from nefarious foreign countries.

Large corporations are already faced with choices over whether to pursue social justice, civil rights, and environmental concerns, and with disputes over the interests of majority shareholders, proxy questions, and the like. Corporate law has extensive mechanisms in place for dealing with these scenarios. Religion as one motive among many does not change the landscape.

In fact, religion is already part of that landscape, since state law allows corporations to pursue it among all lawful purposes. There are no practical or theoretical grounds for specifically excluding religion as a permissible basis for corporate decision- making—indeed, it would be a clear violation of the First Amendment to even try. See Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 877 (1990) (noting that the government cannot ban “acts or abstentions only when they are engaged in for religious reasons”). Yet businesses infrequently choose to pursue religious ends.

As a practical matter, it is hard to demonstrate any interest shown by large, publicly-traded corporations in exercising religion. Market forces tend to push such firms far away from religious controversy. It is no accident that this case and related litigation involve corporations that are closely held.

Is Chick-Fil-A “imposing their religion” by being closed on Sundays? What if Apple announced that they would provide cars to their employees … but only if those cars were electric or hybrid cars. Would the Left Wing start screaming about Apple “imposing their morality” on their employees? What if a university were to ban Apple computers because they don’t like the work conditions in Apple’s factories? There would be some vigorous debate — I would oppose it. But would people think the federal government should step and force the university to use Apples? What distinguishes these moral decisions from a moral decision about what kind of health insurance to provide?

If Hobby Lobby — an ostensibly non-religious organization — were forbidding their employees from obtaining or using birth control pills, I’d be on the side of their opponents. But all they are asking for is to not have to pay for it.

In fact, the Left Wing’s arguments are so disingenuous, I think we are seeing a degree of hysteria. I think they are scared because if the Court strikes this down, it will endanger all coverage mandates. Their ability to dictate every detail of our insurance coverage — to effectively create single payer through mandates and restrictions — will be badly damaged.

But I also think there’s a more concrete motive. The Democrats are pushing this issue and lying about it because, as I pointed yesterday, the polls are not looking good for them. They are worried they are going to lose the election in 2014 and possibly in 2016. And so they are dragging the “War on Women” back out.

Am I too cynical? I don’t think so. This issue has reached a fever pitch at almost the same moment that pundits are projecting a Republican Senate in the fall. The attempts to stuff what is ultimately a business issues into a “War on Women”-shaped hole has almost exactly paralleled the rising unpopularity of Obama and Obamacare. And frankly the Democrats have a long and ugly history of trying to terrify the populace — especially the distaff part of it — with scary stories about how Republicans, if elected, will take away their Medicare, their Social Security, their Obamacare, their birth control, their abortion, their education and their dental fillings if they fall asleep.

So, in the the end, this really isn’t about birth control. If the Democrats really cared about access to birth control, they’d be talking about the solution many libertarians favor — make birth control available over the counter. That would do far more to make birth control available to women than a coverage mandate. No, this about politicizing the hell out of women’s reproductive systems in the hope of holding off electoral defeat.

The Republicans may or not be fighting a “war on women”. But the Democrats are using them as vehicles for their own political gain. I don’t see that that’s any better.

Comments are closed.

  1. Seattle Outcast

    Wellness programs – my insurance company has one of those. Oddly enough, it’s universally reviled by everyone in the company, to the point that they can’t even bribe people any longer to participate.

    First they have you fill out a question bank, and then follow it up with endless emails & robo-calls that provide lots of insulting lifestyle “suggestions” that perhaps would go over very well with skeletal vegans that live in LA.

    Of course, our far-left politicians think that these don’t go far enough. They’ve repeatedly stated that people that don’t want to play ball should be denied health care coverage since the ultimate plan is single payer, and that shit can get expensive if you don’t control people’s lives completely.

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  2. Hal_10000 *

    My employer put a wellness program in with the threat of higher insurance premiums if you didn’t participate. It was a fiasco. No one liked it. Many found it ridiculously intrusive. The questionnaire included things like “have you ever driven while drunk” and, for women, “are you planning to have a baby in the next year”. The eventually backed down after nearly facing a campus rebellion.

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  3. hist_ed

    I am insured through my wife-county coverage. About two years ago they instituted a wellness program. You had several options, including recording at least three rounds of exercise a week. I logged in every Saturday for 8 weeks and recorded my previous week’s soccer and biking. Found out a few months later that for this company, the week ended on Friday at midnight so my Saturday entries didn’t count. For a year my wife and I and 4 kids had our coverage drop from 90% to 75%. Cost us thousands. Fuckers.

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  4. hist_ed

    If we apply the logic the left is using in this case to other rights, then the fact that my employer refused to provide me with a newspaper column and a church must mean that they are denying me my first amendment rights.

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  5. Biggie G

    I’ve seen some pictures of the signs at the hearing yesterday and I had one question. If you want your boss to stay out of your vagina, and you use an IUD, why are you forcing your boss to pay for something that you stick in there?

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  6. Xetrov

    My employer put a wellness program in with the threat of higher insurance premiums if you didn’t participate.

    My company instituted a wellness program, but it’s voluntary, and there’s no discount tied to it. What they did do this year is institute a “bio-metric screening”. Basically you have to give the insurance company some health data (height/weight, BP, cholesterol, triglycerides, etc.) in exchange for a $40 per month credit on premiums.

    Even with that $40 credit, my monthly premiums are still up another $50 this year. Since Obamacare passed, I went from a 100% coverage plan for my entire family with a choice of two different providers for about $180 per month to the best option being a “consumer choice” plan that covers about 60% after $1,000 deductible with only a single provider for $220 per month. Yay Obamacare.

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  7. TxAg94

    I understood the Hobby Lobby objection to be limited to certain forms of birth control, not all birth control. I heard it described as objecting to the “morning after pill” and similar forms that approach, in their view, abortion. I can see both sides of the debate to a point, a very limited point. In the end, though, I side strongly with Hobby Lobby. There are alternatives. As someone said, the arguments being made would be easy to morph into a lawsuit over being able to work one of their stores on Sunday. Overall I extend the availability of choice to having the choice to NOT work for Hobby Lobby. Go work at a competitor. If you need access to “morning after pills” you probably aren’t Hobby Lobby material anyway.

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  8. Miguelito

    What pisses me off about these things is how the left always manages to somehow redefine as “denying access to healthcare” what is really “you won’t pay for it for me.” Because people can’t possibly pay for these things themselves. That was the crux of the whole kerfluffle they created with Fluke too.

    And TxAg94 is right… From what I’ve read and heard, they’re not against contraceptivesm they’re against the 4 types that can cause an avortion or miscarriage post fertilization. They’re fine with things like the pill and condoms that simply stop fertilization from occurring in the first place. Though I still think having those (or things like Viagra before someone brings up that argument) as part of insurance coverage is stupid, unless there’s a valid medical need (as there can be for women and the pill).

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  9. Hal_10000 *

    Hobby Lobby is incorrect in calling the morning after pill an abortificant. It prevents ovulation, not implantation. But that’s an aside. The law and the RFRA don’t care if they’re objections are based in science or voo-doo. They still have the freedom to refuse coverage.

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  10. TxAg94

    Hobby Lobby is incorrect in calling the morning after pill an abortificant. It prevents ovulation, not implantation.

    Perhaps, but then they’d be against it because it is a pill you “need” because you got yourself in a position of needing to apply a last-ditch effort to stave off a baby you hadn’t planned for. The behavior that put you in that position is not in step with their beliefs or behavior standards.

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  11. Seattle Outcast

    What’s that old saying about women have rights, men have obligations? A huge part of this whole argument is rooted in the women’s rights movement and “liberating” them from any/all responsibility at all for any sexual activity, while at the same time giving them 100% of all decision making.

    It’s the template for all libtard programs.

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  12. Biggie G

    I have always wanted the answer to this question. If insurance must now provide birth control pills free as preventative care, must the women who use them for therapeutic purposes like painful or irregular periods, now have to pay to get these pills?

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  13. HARLEY

    1. If you cant afford a morning after pill, you need to spend some time on your finances.
    2. if you want someone to pay for it, ask the guy you spread for last night.
    3. if you are pissed off that hobby Lobby wont pay for your get out of pregnancy free pills,…. go work somewhere that does!

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  14. Hal_10000 *

    Plan B costs $30-50 depending on where you go. Insurance is not the difference between getting it and not getting it. It’s debatable whether it would even be worth your time to file a claim for that. And it’s certainly not worth the time of the drug store that has to file the claim and the insurance company that has to pay it.

    Over at LGF, Johnson is full lunatic mode, saying the Court should be ashamed of themselves for even hearing the case. That it’s not even open for debate. As time goes on, his Obama Defense Derangement Syndrome gets worse and worse.

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  15. hist_ed

    “Hobby Lobby is incorrect in calling the morning after pill an abortificant. It prevents ovulation, not implantation.”

    It depends on timing. If it is taken after fertilization but before implantation then it can prevent implantation.

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  16. Hal_10000 *

    hist_ed, they did claim that initially. But later study showed that it did not prevent implantation at all. They got in some trouble for making that claim.

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