Thursday, July 3, 2014

Hobby Lobby & The Supreme Court

In a deeply-divided 5-4 decision, the United States Supreme Court recently ruled in favor of craft-chain Hobby Lobby in regards to providing certain forms of birth control under the Affordable Care Act. Supporters of Hobby Lobby cast the company’s executives as stalwarts of religious freedom while detractors saw the case as a small group of entrepreneurs attempting to force their religious views upon their workforce.
The majority opinion was based on interpretation of the 1993 Religious Freedom Restoration Act which was largely enacted to protect Native American religious practices. Indeed, it was widespread Congressional outrage with a 1990 Supreme Court ruling in Employment Division v. Smith that led to the bipartisan effort to pass the RFRA. The Smith Case involved two Native Americans who were fired from their jobs for testing positive for peyote and were subsequently denied unemployment benefits by the State of Oregon. The Supreme Court’s decision to uphold the firing and denial of benefits to these two Native Americans for the practice of their religion was so widely derided that the effort to pass the RFRA was supported by both the ACLU and the National Association of Evangelicals. The irony of this same act being cited by the very court it was meant to repudiate is stunning. The fact that the act was used to partially overrule the very legislative body that created it is politics.

The core of the ruling is whether or not the Affordable Care Act’s provision requiring medical coverage of any FDA approved birth-control method “substantially burdens a person’s exercise of religion even if the burden results from a rule of general applicability.” In Hobby Lobby’s case, they argued that the use of both the “morning after pills” (Plan B, Ella, etc.) and IUDs were tantamount to abortion, which the company’s owners objected to on religious grounds.

This was part of a larger “birth begins at conception” movement which raises an interesting question about what Hobby Lobby considers “conception”. The “morning after pill” simply prevents the woman from ovulating thereby keeping the sperm and egg from ever meeting. I could find no scientific evidence that it was effective at preventing an already fertilized egg from implanting. Essentially, this makes it no different than the condoms, spermicide, traditional birth control pills, tubal ligations, or vasectomies that Hobby Lobby is willing to cover. The only difference here is that the “morning-after” pill works after coitus not before or during. One could even argue that by allowing access to emergency contraceptives that prevent ovulation now, we are essentially reducing the number of actual abortions being sought later.

While the debate about the “morning after” pill is well publicized, I was surprised to find Hobby Lobby’s objection to IUDs (intrauterine devices) since they are actually more efficient at preventing fertilization that condoms or pills. While just 9% of American women currently use them (compared to 41% in other developed nations) they have been gaining in popularity here due to their low instance of side effects and ability to conceive immediately upon removal. Hobby Lobby doesn’t wish to cover them because it is possible to use certain IUDs as an emergency contraceptive if it is inserted within five days of intercourse and they could prevent implantation of a zygote in some cases. Not only are IUDs statistically unlikely to be utilized in this method, most gynecologists test for pregnancy before they will even insert the device. Perhaps if Hobby Lobby wished to prevent this use they could cover IUDs with the requirement that the physician perform a pregnancy test prior to insertion.  

Unfortunately, like all discussion involving abortion and religion, we are forced to split hairs. The Green Family, which controls Hobby Lobby, happens to interpret their religious convictions through the lens of Pentecostalism. They believe that while certain forms of birth control (condoms, vasectomies, tubal ligations, traditional birth control pills) are consistent with Christian faith; others (IUDs, Morning-After Pills) are forms of abortion. In many cases, this means that their distinction between prudent family planning and pre-meditated murder could be simply a matter of minutes.

If the Green Family happened to be devoutly Catholic instead of Protestant, they would likely consider any interference with the reproductive process immoral. If Hobby Lobby had been started by a Jehovah’s Witness family, they might have balked at covering lifesaving blood transfusions. Had the Greens been Muslim, perhaps porcine heart valve replacement would have been a sinful use of the company’s money. Scientology would have exempted them from being forced to cover anti-depressants or medically treat PTSD. I say that not to diminish anyone’s religious views, but to remind you that we are legally placing ourselves in a position to allow someone else’s convictions regarding morality and medicine to limit the choices available to others simply because they share a payroll system.

Theoretically, if everyone who worked at Hobby Lobby already held the exact same religious convictions as the chain’s proprietors, this ruling would be unnecessary since no one would take advantage of these contraceptives anyway. The ruling is necessary precisely because not everyone under their employ shares their views on religion or morality. The Greens (as individual citizens) were under no personal legal obligation to utilize any form of FDA-approved birth control any more than I have a legal obligation to drink liquor simply because I eat dinner at a restaurant that serves it.

The polarizing question is whether or not you believe the religious freedoms granted to individuals should be extended to the for-profit corporations they helm. Personally, I am not convinced that limiting thousands of employees’ access to a highly-effective form of birth control simply to relieve the moral discomfort of a handful of people is what the founding fathers had in mind. The fact that they were legally obligated to do so by Federal law does little to diminish this. After all, Federal law also dictates that Hobby Lobby pay all of their employees a set wage for the hours that they work even though it is entirely possible that some of those same employees could be utilizing that money to fund an extra-marital affair or gambling habit (both of which I suspect The Greens would find morally reprehensible as well).  

Many see the ruling as a victory for Christianity (I personally don’t feel qualified speaking for Jesus concerning ovulation) while others see this as yet another example of women’s healthcare choices being suppressed by a panel of men. Wherever you fall on the political spectrum, this ruling set a legal precedent whose reverberations we cannot possibly fathom from this point in history. Perhaps, as the majority opinion insisted, this was a narrow ruling directed at privately-held for-profit corporations strictly in regard to contraceptives and will never be broadly interpreted in the future. I fear they may be overly optimistic.

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