Initially, the close vote in Monday’s Supreme Court ruling struck me as a surprise. I had anticipated the Justices to side heavily with Hobby Lobby, a corporation fighting against the contraception mandate in the Affordable Care Act on the grounds of religious freedom. Instead, the case of Burwell v Hobby Lobby came to a close 5-4 vote, favoring the corporation by just one ballot. The ruling will allow businesses with over 50 employees to opt out of the Affordable Care Act contraception mandate, which required health care plans to include access to various types of birth control. Religious freedom is a concept intrinsic to American life, and as a key component of The Constitution, it seemed obvious that Hobby Lobby would win the case.
For months, this debate has seemed futile to me. Though some religions promote opinions I don’t agree with, I feel strongly that opposing cultural views doesn’t justify the infringement of religious freedom. However, as the final court ruling has now been made, I’ve realized that by accepting the religious rights of Christian business owners, I have inherently denied the rights of thousands of low wage employees. Additionally, even after decades of “equal rights” in America, Monday’s ruling has highlighted the Anglo-Saxon, Christian, male-centric society our government caters to, while denying the same rights to their more equanimous peers.
Economic Rights Vs. Religious Rights
Twitter hashtags and news site headlines speak to the obvious issue at hand: Religious Freedom and Women’s Freedom hold conflicting viewpoints. Convincing arguments have been made for both sides, as it appears that someone’s rights are at risk no matter the final decision.
But, by moving from a religious vs. feminist debate to a conversation that realizes the economic implications of this decision illuminates the most impactful issues.
The mouthpieces for the religious debate have used a surprisingly unconvincing argument to support their opinion: Hobby Lobby isn’t denying anyone of their rights, as contraception is still available to every one of their employees, just not provided out of the business owner’s pocket. In a 2012 interview with the National Review, President and CEO of Autocam Corporation, John Kennedy, explained his position on the issue:
“I am not trying to prevent access to anything that’s legal in the U.S. today. I don’t tell my employees how to live their lives or how to make decisions about family planning or abortion. In fact, our employees can purchase anything…—including a surgical abortion — with pre-tax dollars through their HSAs (health savings accounts). I’m simply trying to ensure that my family does not spend our money in a way that directly supports conduct that violates our deeply held beliefs.”
In the same interview, Kennedy reported that the average salary at Autocam Medical is $53,000 a year, or about $4,400 a month. In Grand Rapids, MI, where most of the company is centered, average rent is $900 a month, when combined with other basic needs like food, electricity, renter’s insurance, cell service and internet, the average person would spend about 40% of their $4,400 monthly income to meet the basic American standard of living. Let alone transportation, debt repayment, clothing, any unexpected costs and the necessity to save money. On Kennedy’s proud average employee salary, the annual $850 charge for oral contraceptives is likely unattainable. A single morning after pill costs $50. If a woman needs surgical sterilization, it would cost $6,000 out of pocket, and a first trimester abortion could cost upwards of $2,000, and substantially more for a second trimester procedure.
For this reason, Kennedy’s proposed solution to prevent infringement on his religious freedom could easily put his average female employee into a substandard living condition.
The Affordable Care Act was implemented in order to relieve American citizens of the nation’s exorbitant health care costs. Burwell v Hobby Lobby may have been a case of piety for the corporation, but it’s a case of economic equity for their employees, placing religious freedom ahead of wage equality. This is not an issue of who gets to practice their religion, rather one of who gets to decide what people spend their money on.
If Burwell v Hobby Lobby had passed in Burwell’s favour, it is unarguable that the religious beliefs of some business owners would have been compromised. But, even more important to the general population of American citizens, it would have prevented rich businessmen from forcing their female employees to spend money that their bosses don’t pay them. Business owners need to pay their employees more or pay for their birth control. The ruling that occurred is not a fair third option.
Christian Rights Vs. Religious Rights
Consider this:
What would have happened if Christians were not heading the debate of religious freedom? What if a woman was leading the fight? What if men were also being denied their right to health care? Maybe, instead of Hobby Lobby, Kraft Foods came forward and said that it would no longer cover anesthesia in their employee’s insurance package because it contains pork by-products, which is not compatible with the religious practices of the company’s Jewish (and really kickass) CEO Irene Rosenfeld.
Of course, this is all speculation, but I think most of us would have scoffed at the idea, and I assume it never would have received enough traction to reach the Supreme Court.
So, why does Irene Rosenfeld have to compromise her beliefs and foot the bill for her employee’s anesthesia while David Green, CEO of Hobby Lobby, can deny his female employees access to medical care that meets 21st century standards?
Do some religions deserve more freedoms than others? Do those that are loud and uncompromising deserve more rights than their more accommodating peers? According to the constitution, the answer is no. However, the Supreme Court ruled to allow discrimination on Monday; discrimination against women, the working class and the diverse group of business owners and CEO’s whose religious rights are still being compromised despite the Court’s decision.
Unfortunately, this isn’t about a single rich Christian. Instead, it is about patient and systematic small steps towards denying women their reproductive rights, leading to the obvious long term goal of overturning Roe v Wade (which Justice John Roberts has more than hinted at). The Supreme Court has set a precedent that a woman’s ability to properly take care of her body is less important than how a Christian spends his money. Supporters of this ruling will continue to nibble around the edges until they get what they want.
With the aging Supreme Court (4 justices are over the age of 70, 2 of which voted in Hobby Lobby’s favor), it is expected that a new judge will be appointed in 2015. As of now, we can only hope that this new Justice will consider all aspects of this issue before casting his or her vote when the topic undoubtedly resurrects in the future.
- Madison Ordway
Brilliant article, well considered and important points. However, one point I would like to make is that religion is afforded undeserved privilege in our society. Most people seem to think that religion is above criticism and should be respected to the point that a person’s religious beliefs can’t be questioned. Yet almost every other belief a person can have (political, economic, personal etc.) can be freely debated. This is all the more important when you consider that the major religions of the world (Judaism, Christianity, Islam) are literally patriarchal (our father, who art in heaven…) and, as this example shows, oppose women’s rights. It’s a hangover from when Eve (allegedly!) ate the apple, women are still being punished for that mistake. The Hobby Lobby was always going to win because their religion is respected above and beyond their employees, and the reproductive rights of those employees. It seems crazy that the word of an archaic, contradictory, overwhelming HUMAN book is still given power and authority in today’s society, and yet that is the case. I often find myself questioning how much closer we could be to equality in world without religion, and therefore without all the prejudices that go hand in hand with it.
Good article but I think you’re making a mistake by framing Hobby Lobby as a person with a right to religious beliefs instead of a corporation that must adhere to certain laws regarding their employees. No one is forcing the business owner to spend their own money supporting things in which they do not believe, but the employees insurance and salaries are surely covered by the company’s turnover which makes that a moot point. Not just that but as someone else on the internet pointed out, as a corporation, Hobby Lobby gets certain protections that people don’t (such as tax breaks) and if HL wants to be a person with religious beliefs it should not get the protection of a corporation. Finally, the right to religious freedom doesn’t mean the right to impose your religious beliefs on others, which is exactly what HL is now allowed to do.
Jollers,
I completely agree with you! Before thoroughly understanding all the elements of that argument, I was having a hard time grappling with it. Freedom of religion seemed applicable to the business owner, and I figured that through that it should be applicable to the business he owns. After further research, I couldn’t agree with you more, and though the point isn’t made clear in this article, I feel that it is an argument that holds plenty of weight.
I can see lots of business owners suddenly developing strong religious beliefs.
I hope that the owners of HobbyLobby never use banks or consort with anyone who works for one, since usury (lending at interest) is also forbidden: Ezekiel 18:13: ‘Lends at interest, and takes profit; shall he then live? He shall not live. He has done all these abominations; he shall surely die; his blood shall be upon himself.’
Since SCOTUS is so concerned to protect rich Christians, they should legislate to prevent anyone in the US from lending at interest, so that the beliefs of the poor HL owners aren’t compromised. After all, if it’s right to strip away women’s rights in order to look after rich Christians, it’s right to strip away bankers’ rights in order to look after rich Christians.
This is certainly a complex issue, but I’m afraid I simply don’t think the argument presented against the Supreme Court’s decision above is coherent (or, if it is, its premises are not properly set out). The problem to my mind is encapsulated in this phrase:
Business owners need to pay their employees more or pay for their birth control.
Why? I think the answer from the author would involve to some extent or another “a woman’s right to birth control”. But, properly construed, this is not a straightforward right, as, say, the rights to liberty or free speech are. For the latter rights are direct rights – someone has to accept that I have them if they are to exist. Birth control, in contrast, is indirect; properly construed, what free choice advocates want is actually the right to do what you want with your body. To have that, I simply need to give someone liberty – it’s up to them what they go on to do with that liberty, and I need not have any intention that they will have an abortion for my freedom to give them that ability. It’s a mark of how ridiculously politicised the issue is in the US that “the right to birth control” is contested when what’s at issue is the old American idea of liberty. It would be just as ridiculous to talk about “the right to disagree with the use of birth control”.
With this in mind, it seems confusing that anyone should be forced to pay for birth control when they cannot be forced, say, to help someone pay for a tattoo (since liberty also affords people the “right to disagree with tattoos”, right?). As long as Hobby Lobby do not prevent their staff from practising any kind of contraception (by firing anyone known to utilise it, for instance), they are not infringing the individual’s indirect right to use it. Going the other way and forcing someone to pay for contraception, however, seems to directly impinge on business owners’ liberties just as requiring me to associate with people I find repugnant would: they are no longer free to live according to their consciences. This is where the article seems incoherent: like attitudes to assisted suicide, attitudes to contraception are ultimately issues of conscience, no matter what the more vocal choice advocates claim, so if we are to let people follow their consciences this means letting them do so even when we do not agree with what their consciences tell them. Happily, the free society that this dictum underpins provides Hobby Lobby’s employees with the freedom to find another employer, perhaps one which better matches their own consciences. And, more happily still, this dictum prevents others who do not share these views from compelling such liberal businesses to abide by their more conservative views.
So, in sum, freedom means allowing people to do things which we might not agree with, so that we can have the secure freedom to do things that others might not disagree with.
I foresee two objections: 1) That the US healthcare system is such a mess that free choice cannot and does not exist – employee provided health insurance is the only kind there is (there are shades of this in the article above). I agree, but it strikes me that this requires the removal of the insurance monopoly to create a genuinely free market – something Obama in fact wanted to do initially but couldn’t because of the power of the insurance lobby. Whatever – it requires shifting our argument not micro-managing individual liberties.
2) Some issues, such as that of contraception or assisted suicide, should not be left to individual consciences because they are “too important” somehow. Such a claim ignores the innate contestability of political issues. Democracy and freedom are valuable precisely because they (should) protect us against the fanaticism of those who think they “know” what’s good for others; we all ought to beware that whatever legal or institutional setups we might create to enforce their beliefs on others could just as easily be used against us.
Paul,
On one front, I couldn’t agree with you more: This is an issue of liberty. As defined by The Oxford Dictionary, liberty is “the state of being free within society from oppressive restrictions imposed by authority on one’s way of life, behavior, or political views.” If employers do not provide contraceptives in their government mandated insurance plans, they need to offer their female employees the liberty to purchase birth control for themselves by paying them a higher wage. Without including birth control in an insurance plan, or without paying employees enough to purchase the birth control at full price, women do not have the liberty to use contraceptives. Of course, we all have the right to agree or disagree with the practice; but, to deny someone the ability to properly care for herself because of a moral disagreement inherently infringes on the woman’s liberty.
Your tattoo analogy leaves something to be desired. Unlike what you assert, this isn’t an issue of conscience, but one of health. An aspect commonly left out of the mainstream media’s discussion regarding contraceptives is their many functions beyond preventing pregnancy. Hormonal contraceptives are often used to regulate periods, reduce the pain of cramps and migraines, to control endometriosis, to limit acne and to reduce the risk of ovarian cancer. Unlike forcing an employer to pay for a tattoo, which an employer might have a moral objection to; tattoos are not essential to the livelihood of a human being. Moral objections should not trump the importance of a woman’s health. As made clear by my article, this may be a case of piety for the corporation, but it is about both health and economic equity for their female employees.
Reasonably so, I make both of your anticipated objections. As the health care system currently stands, many women are forced to choose between employer provided healthcare or none at all. When an employer does not include contraceptives as a part of their insurance plan, women have to choose between not using birth control and paying a price they can’t afford for it. I thoroughly agree that the beauty of freedom is that it protects against the fanaticism of those who believe they know what is good for others. The Supreme Court ruled to infringe on this freedom, offering corporations to power to make decisions about what is right for their employees.
So, I’d like to answer your initial question.
Why?
I do not answer “because of a woman’s right to birth control,” rather, “because of a woman’s right to health and equality.”
Madison,
Thanks for your detailed reply – this is a horribly complicated issue, and it’s good to have been corrected on the point about health vs. conscience (a point I did indeed neglect). I should also point out that I fully respect your position. I just don’t think it’s correct that you can justify your claim on both liberal and egalitarian grounds. In fact, the two are very sharply at loggerheads here.
To explain why, let me correct a typo in my own definition of freedom. I should have defined freedom as:
‘freedom means allowing people to do things which we might not agree with, so that we can have the secure freedom to do things that others might not agree with.’
This is important because I think this definition actually works better than the OED’s, as the latter rests upon that tricky term “oppression”. Oppression is surely in the eye of the beholder, right? If I’m oppressed by my employer not offering a certain kind of insurance, she/he is equally oppressed by being forced to offer a certain kind of insurance. After all, this whole issue is given impetus because there is a moral disagreement here: regardless of your view, there are some people who think that interfering with human reproduction is a moral bad. To say that by following their beliefs Hobby Lobby are oppressing others, but that it would not be oppressive to require Hobby Lobby to follow your beliefs, is to do precisely what I as a liberal worry about: you’re suggesting that your view of what is right should trump those who disagree with you. Since there is no objective right or wrong here, only personal views (no matter how strongly these views are held), the only non-oppressive position is to let everyone freely follow their own ideas of the right.
Nevertheless, the point you make about contraception and health is well-taken. This sheds a different kind of light on the issue, making it about more than freedom. But I disagree that just because it is a matter of health, the debate is somehow closed. In fact, your suggestion that
‘If employers do not provide contraceptives in their government mandated insurance plans, they need to offer their female employees the liberty to purchase birth control for themselves by paying them a higher wage.’
is not a point about freedom at all, despite your assertion that it is. Nothing is stopping women from purchasing their own contraception, nor is anything stopping them from leaving Hobby Lobby to join another employer. What is in fact happening is that those women who stay with Hobby Lobby (for whatever reason, perhaps because they can’t find employment without moving homes, for instance) are now required to sacrifice other goods/purchases so they can pay for contraception. At this point, we’re faced with two issues:
1) Possibly these women will under-consume contraception, because of its high cost.
2) Possibly these women will, as a consequence, face more health problems than men, who face neither the same health-based requirements for contraception nor the same obstacles to contraception.
Issue 1) is an issue about what’s good (what we, as a whole, reason to be the best outcome), while issue 2) is an issue about equality. Clearly, then, it may be an affront to both the common good and to equality to let people have the freedom of conscience as to what health packages they offer to their employees (I say “may”, because like all governments, Obama’s administration designed his reforms to try and realise a number of consequences in the healthcare market, not the least of which is lower prices). But neither of these things obviously demonstrate that such people should not have that freedom, or that they should be required to pay to compensate the woman affected. After all, to force Hobby Lobby to pay indirectly for contraception would be as much an affront to the owners’ views as making them pay directly – it’s their complicity in the consequence of the transaction that matters to them, not the method by which the transaction takes place.
The reason I’m willing to countenance this obtuseness is because as the father of modern liberalism himself, John Rawls, put it, “the right” must have priority over “the good”. Otherwise, we could have no principles upon which to base our individual freedoms – these freedoms would be at the mercy of the elites to decide what’s “good” for us (and I might add here that it was the very striking down of this kind of paternalistic attitude which created the conditions for women’s emancipation and for the proliferation of birth control and abortion). If Hobby lobby can’t be obtuse with regards to what they believe, will I be able to be obtuse over what I believe?
So, it seems to me that this is ultimately a dilemma between freedom (an intrinsic good) and equality (an instrumental good). Do we want to infringe the freedom of individual conscience and choice in order to realise a (by definition) non-universal instrumental goal, or do we want to allow individuals to make their own choices about what a good life involves?
“Business owners need to pay their employees more or pay for their birth control.”
That is not quite it. According to the law, businesses (not their owners, the owners are not the business), have to give health insurance to their workers.
This is a part of their salary, and some business are required by law to give insurance to some of their workers.
ACA now sets a minimum on what health insurance must contain, one of the things it must contain is contraceptive coverage.
So the insurance the business must buy for its workers must now include contraceptive coverage.
This is a requirement which is written into the law. The law binds the business.
Now the owners of a business has been given the right to disobey the law. That is what the SCOTUS decided. That the religious feelings of the owners trumps the law. Furthermore they have given no reason as to why HL can chose to break the law concerning contraception, but not concerning vaccines or mental health treatment. Even though they write in the majority opinion that it only concerns contraception , the only reason given is that it is a sincerely held religious belief.
So now the court gets to decide if a belief is “sincerely” held, and whether it is religious in nature, which is playing fast and loose with the first amendment.
Furthermore Religious Beliefs now trump legislation, thus favoring religious belief above other beliefs. So if I believe that contraception is wrong, but I am not religious, I could not as a business owner break the law on this point. If in stead I was a Roman Catholic I could.
In other words SCOTUS has given religious people carte blanche to break laws because of their religion.
So much for the separation of church and state!
Another point is that when you incorporate you make yourself distinct from that business. If it is shown that Hobby Lobby sold pearls that were radioactive, killing thousands of preschoolers, then the lawsuits would target the business, but the owners would be immune to any legal challenge.
But now SCOTUS says that any action made by the company, by SCOTUS standards, is also made by the owners. So why do they deserve to be counted as sepearte legal entities from the business they own? Thay cannot have the benefit of personal religious freedom express even through their ownership, but at the same time be legally shielded from any actions made by the same business!
Soren,
I think you’re right that there is some incoherence concerning the state’s relationship with incorporated organisations. On the one hand, they are legally treated as individuals, which gives them limited liability, but on the other, the Supreme Court recognises the rights of individual business owners as if they were separate from the company’s.
I wonder if there’s no way around, this, however? This fudge seems to me to reflect the messy reality here, rather than a concerted effort to muddle things. The reality is messy because a) businesses are nothing other than a conglomeration of individuals acting in concert, but b) because if all company law is always oriented towards these individuals, they will be too risk averse. Since we need businesses to take risks in order to provide employment, growth and development, the only reasonable option we have is to fudge, and remove the disincentives to risk-taking behaviour when we have sound economic reason to do so. This fudge goes beyond the rights of conscience, of course; the very recognition that a company is a property that can be owned by individuals (when, of course, individuals cannot be owned as property) reflects the legal recognition that companies are not in fact “people”.
Things are more complex still because this isn’t really what’s at question here. The legal requirement created by Obama’s medical reforms for companies to buy medical coverage is nothing to do with efficiency, and is everything to do with his administration’s failure to reform the insurance racket. As such, there’s no need to abstract from individual business owners. So I don’t think the recognition of an individual’s right to follow their conscience here stems from a confusion over what a business is at all. It’s rather a statement that the law passed by congress is unconstitutional at least in the respect that it interferes with the freedom of religion. For better or for worse, the constitution protects a citizen’s freedom of religion, but not their freedom to discriminate for flippant reasons. So I don’t see any inconsistency here.
As I suggested above, the fact that the US healthcare system is such a mess that it creates these dilemmas whereby the only way for some women to reasonably access contraception is to abridge others’ rights doesn’t mean that we should give up on those rights. Instead, it means we should recognise that the system itself is the affront to women’s equality, and that we should concentrate our efforts on challenging that system so that we might be able to respect both the individual’s right to follow their conscience and a woman’s right to choose what kind of healthcare she wants.
Watch out Britain: when we abandon the NHS and privatise healthcare this is what we will be faced with.