So I’ve had a few days to digest the Hobby Lobby decision and wanted to put up some further thoughts.
First, a lot of Leftists are claiming that this decision “proves” that we need single payer to make all these issues go away. Of course, the Left saw yesterday’s World Cup game as proof we need single payer. But the argument from the Hobby Lobby case is so poor that even Ezra Klein sees right through it:
At the core of the case is the fact that Obamacare had to decide which health-care services absolutely needed to be covered and which services didn’t. One of the services Obamacare deemed essential was contraception. That’s what led to the Hobby Lobby case: prior to Obamacare, there was no federal law forcing employers who offered insurance to cover contraceptive care, and so no need for employers to seek exemptions to that law.
A single-payer system heightens the stakes on this kind of decision. The assumption behind some of the Hobby Lobby-based arguments for single payer is that a single-payer system would cover contraception and that would mean everyone’s insurance covers contraception. But a Republican-led government could decide that taxpayer dollars shouldn’t be going to cover contraception at all, and then a single-payer system means no one’s insurance covers contraception.
An example comes from one America’s current single-payer systems: Medicaid. While Medicaid does cover contraception, Congress decreed years ago that it can’t, under any circumstances, pay for abortions. So while people buying private insurance can choose a plan that covers abortion if they want (and, in fact, about two-thirds of private health-insurance plans cover abortions), people in the Medicaid system have no option to choose a plan that covers abortion.
Ding! It boggles my mind that people can claim single payer will “take the politics” out of healthcare decisions. I have to believe that the “this supports single payer” claimants really mean something else: with single payer, Obama will be able to force a liberal vision of health insurance on the rest of the nation. That’s fine … as long as he’s President. But what will they say when President Santorum strips out birth control coverage and mandates coverage for gay conversion therapy? This is what conservatives and libertarians warned about from day one: the further you involve the government in healthcare, the more politicized healthcare decisions will become.
I oppose encroachments of government power. I oppose them even when I like the guy in office. The reason, as Lee pointed out endlessly, is because I know that he will not be in office forever. Eventually, someone I don’t like will be in. And he’ll have all the power we gave the last guy and take even more. See: Obama, Barack and Surveillance State.
Second, I am amazed at just how silly some of the commentary has gotten. Many commentators have clearly not read the decision or even vaguely familiar with its contents. Megan McArdle deals with some of the silliest talking points here. Eugene Volokh explains the narrowness of the ruling and why it was a statutory not Constitutional decision here. I’m hoping Ann Althouse, who has read the entire decision and is an expert on Constitutional Law and religion, will do some more blog posts on it. One of her first posts is this one, taking on the talking point that businesses can now do anything if they say it’s in the name of religion:
Under the Religious Freedom Restoration Act, when the federal government imposes a substantial burden on the exercise of religion, it must justify that burden by showing that it is the least restrictive means of achieving a compelling governmental interest. In Hobby Lobby, the compelling governmental interest is comprehensive preventive health care for women, and the majority said that requiring the employer to include coverage of all FDA-approved contraceptives in its health care plan was not the least restrictive way to to serve that interest. There are other ways the government could get the cost of contraceptives covered, ways that wouldn’t rope in the employer.
So the government’s interest could be served without imposing the burden on religion.
But when the government bans race discrimination, it is serving a compelling interest in banning race discrimination and there is no alternative way to achieve that end.
Exactly. The RFRA is designed to apply a common-sense limitation on government action where religion is concerned. It’s not a blanket that can allow human sacrifice or a refusal to pay taxes. In this particular case, the Court decided that the government can make sure women have access to birth control without requiring religious people to compromise their beliefs. And that was all it could rule on at this time.
Importantly, the Court did not decree that “corporations are people” or give them First Amendment rights (although they do have First Amendment rights in the context of free speech). They ruled that the people running closely-held businesses have First Amendment rights and that the RFRA requires the government to respect that. Don’t like it? All you have to do is revise the RFRA. Good luck with that.
Third, what’s amazing about the commentary is the number of catch-22’s the liberal intelligentsia places the Court in. When the Court ruled that birth control coverage could be refused for religious reasons, they started screaming, “Well, what about blood transfusions! What about psychiatry? What about gelatin? Huh? Huh? Huh?” But when the Court declined to specifically address those issues — because they can’t — the liberals then accused the Court of foisting their own religion on the country and ignoring everyone else’s.
They accused the Court of scientific illiteracy when they ruled on the methods Hobby Lobby believes are abortifacients (although, having poked around, I don’t the case that they aren’t is as ironclad as claimed). But when the Court clarified that coverage for all methods of contraception could be declined, they went ape again that the ruling was overly broad.
(I also must keep harping on this point: insurance-provided birth control is not “free”. You pay for it with your work. And you pay for it specifically with money your boss gives to the insurance company instead of you. Mother Jones — always a good source of mathematical garbage — put up a calculator showing how much birth control will cost a woman over her reproductive life. But she’s going to pay that price whether she is insured or not. In fact, there are good reasons to believe she will pay more by getting it through her insurance. What happens is that people get birth control through their employer’s insurance … and then wonder why their insurance premiums went up $50 a month.)
The one idea I keep returning to, however, is this: the Left should not be angry. Miffed a bit, sure. But they shouldn’t really be angry.
They should be ecstatic.
We now live in a country where insurance coverage of contraception is mandated by law for all but a small segment of employers. And those will almost certainly be covered when Obama expands the compromise that the Court gave their assent to (although he will probably let women swing in the wind until after the election). The conservative wing of the Court did not dispute that the government can provide birth control coverage. Nor did they dispute that insuring women have access to birth control was a compelling interest of the government. Griswold is in no danger of being repealed. A slight wrinkle has been thrown out in how birth control is paid for. And there are some states where Republicans are attacking programs that help pay for birth control for poor women. But overall, women are in a far better position with respect to controlling their reproductive systems than they have ever been.
I know people want to see this in terms of absolutes: that women have an absolute right to birth control. But living in a country of 300 million people means none of us get everything we want. There are no absolute policies that will work for the entire country.
And yet, with a near complete victory — the provision of almost “free” birth control; a goal they have wanted for decades — they are in hysterics because it wasn’t a complete victory. They are angry because a compromise was reached for people who have a moral objection to certain types of birth control. They are angry because they didn’t get everything they wanted. 85% of employers covered birth control before Obamacare. Nearly 100% will now and the remainder will get it through some kind of compromise. You can be a bit disappointed that it’s not 100%. But proclaiming that SCOTUS has now imposed Sharia Law and made women second-class citizens? Seriously?
Where once the religious right sought to inject a unified ideology of traditionalist Judeo-Christianity into the nation’s politics, now it seeks merely to protect itself against a newly aggressive form of secular social liberalism. Sometimes that liberalism takes the relatively benign and amorphous form of an irreverent, sex-obsessed popular culture and public opinion that is unsympathetic to claims of religious truth. But at other times, it comes backed up by the coercive powers of government.
That’s how the Hobby Lobby case needs to be understood: as a defensive response to the government attempting to regulate areas of life that it never previously sought to control. Like, for instance, the precise range of health insurance benefits a business must provide to its employees under penalty of law. Hobby Lobby doesn’t oppose contraception as such, as some Catholic businesses do. It merely opposes four out of 20 forms of contraception that the Obama administration wants to force them to cover — because its owners believe those four to be abortifacients.
From advancing an ideological project to transform America into an explicitly Catholic-Christian nation to asking that a business run by devout Christians be given a partial exemption from a government regulation that would force it to violate its beliefs — that’s what the religious right has been reduced to in just 10 years.
Exactly. The Left Wing has been running up victory after victory in the Culture War. Gay marriage just became legal in fricking Kentucky. Colleges are so eager to make birth control available, they’ll shove it down throat if you sleep with your mouth open. Marijuana is legal in two states and the edifice of criminalization is imploding. Public prayer has been reduced to few non-denominational utterances. Their only conservative “wins” have been a few recent restrictions on abortion and public funding for birth control, policy changes that are likely to be short-lived.
For a long time the Left has claimed that they are the side that wants to compromise and it is conservatives who are intransigent. Yet what is this but rejecting a compromise? What is this but going to tired “war on women” rhetoric at the slightest provocation? No one is being denied birth control. No one’s boss is interfering with their birth control. This is ultimate result of the Hobby Lobby decision: the Federal government will have to make a deal to provide birth control coverage for employees of a small fraction of businesses..
That’s a War on Women? That’s treating corporations like people and women like second-class citizens?
I humbly suggest the rhetoric over this decision needs to be toned down. Because if the Left shout down the heavens for something like this, who’s going to be listening when a state tries to outlaw abortion? Or repeal sexual discrimination laws? Or place heavy restrictions on birth control?
When it comes to long political struggles, you have to choose your battlefields. As much as I oppose much of what the religious right is doing right now, this isn’t the field on which the banners should be unfurled. Accept the near complete victory and move on.