Some Sensible Commentary on the Hobby Lobby Decision

Read all of Emma Green’s article, and note especially the following:

. . . as John J. Dilulio Jr., the first director of the White House Office of Faith-Based Initiatives, writes over at Brookings, “Love it or loathe it, the Hobby Lobby decision is limited in scope.” It’s about how the Religious Freedom Restoration Act applies to this particular objection from Hobby Lobby and other “closely held” companies, or businesses that are mostly owned by a small group of people who also happen to run them. And the Court went out of its way to clarify that their ruling does not apply to other possible medical objections, like blood transfusions and vaccinations.

Most importantly, this ruling won’t necessarily prevent women who work at Hobby Lobby, Conestoga Wood, or other religious companies from accessing birth control through their insurance plans. In the majority opinion, Alito specifically suggests that the government could use the same kind of exemption it has set up for non-profit organizations: Companies would have to sign a short document certifying that they object to providing birth-control coverage, and then the government would take over coverage from there. Several separate court cases about this accommodation are still pending in lower courts, but the point is that the Court doesn’t think bosses should get to deny affordable birth-control access to their employees—they just shouldn’t necessarily have to pay for it.

Ginsburg doesn’t buy this. The ruling, she says, “would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.” She also pointed out that the list of medications included drugs that address issues beyond pregnancy, including pelvic pain, cancers, and menstrual disorders.

But Anthony Kennedy, in an opinion concurring with the majority, calls her out on this. Of all the justices who wrote in this case, he seems to find the best way of balancing these two sides:

Among the reasons the United States is  so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or  her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.

In other words, nobody gets to be “right” in this case. No one’s religious beliefs can trample someone else’s health needs, and even if the government can’t force closely held private companies to pay for contraceptives, these companies can’t stop their employees from being on birth control. Hobby Lobby is a balancing act, not a bludgeon—and certainly not an attack on women’s rights.

Also very much worth reading on this subject is Ilya Shapiro:

By now you’ve no doubt heard that the Supreme Court ruled corporations can fire women who use birth control and that religion trumps all other values in constitutional jurisprudence. At least that’s what my Twitter feed tells me.

But what was at stake in Burwell v. Hobby Lobby actually has nothing to do with the power of big business, the freedom to use any kind of legal contraceptive, or how to balance religious liberty against other constitutional considerations. Much like Citizens United (which struck down restrictions on corporate political speech without touching campaign contribution limits) and Shelby County (which struck down Section 4(b) of the Voting Rights Act because it was based on obsolete voting data that didn’t reflect current realities as constitutionally required), Hobby Lobby is doomed to be misunderstood. The case now enters the “war on women” echo circus—as if half the plaintiffs challenging the Affordable Care Act’s contraceptives mandate weren’t women—or possibly some more bizarre corner of the Obamadämmerung.

Indeed, if you walked by the Supreme Court when its final opinions were coming down, you’d be excused for thinking that the justices were about to rule on some mega-case combining gay rights, abortion, and the death penalty. But no number of rainbow flags or “keep your rosaries off my ovaries” chants could change the fact that Hobby Lobby was actually a rather straightforward question of statutory interpretation regarding whether the government was justified in this particular case in overriding religious liberties.

The Supreme Court evaluated that question and ruled 5-4 that closely held corporations can’t be forced to pay for all of their employees’ contraceptives if doing so would violate their religious beliefs. There was no constitutional decision, no expansion of corporate rights, and no weighing of religion versus the right to use birth control.

The following regarding the Religious Freedom Restoration Act–the act under which Hobby Lobby brought its suit–is worth highlighting as well:

. . . RFRA is a statute passed unanimously in the House and 97-3 in the Senate, and signed by President Clinton. Its lead sponsors included then-Rep. Chuck Schumer (D-NY) and Sen. Ted Kennedy (D-MA). These religious zealots’ intent was to reverse a 1990 Supreme Court ruling—written by that heretical secular humanist Justice Antonin Scalia—that approved the constitutionality of generally applicable laws that burdened religion so long as they didn’t specifically discriminate against religious people. (If objectors wanted an exemption, they would have to seek it from the legislature.)

I bet that the vast majority of opponents of the Hobby Lobby decision don’t know any of this.

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