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.