My Conservative Take on the Hobby Lobby Decision

“One of the well known truisms in ethics is that good moral judgments depend in part on good facts.”
– Ron Hamel

Some of you might remember the case of Michael Salman. Salman was an Arizona pastor who, we were told, had been arrested for holding bible studies in his Phoenix home. The Rutherford Institute, a civil liberties organization, came to his defense. Fox News and other conservative news outlets claimed his First Amendment rights were violated. Why couldn’t this man practice his religion in the privacy of his home? Social media outrage ensued.

As you might expect, there was more to the story. The city of Phoenix released a detailed timeline and fact sheet related to the arrest. They revealed that Salman’s building permits expressly prohibited “any other occupancy or use (business, commercial, assembly, church, etc.).” The building was considered a fire hazard and violated 96 civil codes. Salman told the city he wasn’t building a church but his “bible studies” regularly had up 80 people in attendance. According to the city, “He held services twice a week and collected a tithe at the services. The building that he held services in had a dais and chairs were aligned in a pew formation.  He held himself out as a being a church through the media (Harvest Christian Church) and claimed a church status for tax exemption purposes on his property.”

In reality, that was never a First Amendment issue at all. A man held gatherings in a building that was not up to code. The city rightly and repeatedly told him he couldn’t do that. He refused to comply and spent 60 days in jail as a result.

The Hobby Lobby case has a lot in common with Michael Salman’s case. For those of you who don’t know, Hobby Lobby is an arts and crafts retailer that provides health insurance coverage to their workers. Under the Affordable Care Act, all health care plans must meet certain bare-minimum standards. One such standard is it must cover contraception without cost-sharing. There are currently twenty FDA-approved contraceptives; Hobby Lobby objected to four of them, believing those four to be abortifacient (that is, that they cause the termination of a pregnancy). The owners of Hobby Lobby are evangelical Christians and oppose abortion on religious grounds. Not wanting to actively subsidize abortions, they sued for a narrowly-tailored exemption to the ACA’s contraceptive mandate and won.

Obviously, it doesn’t end there. Conservative groups are hailing this as a victory for religious liberty. Liberal groups are weeping and wailing that women’s health has been set back decades. Hyperbole is running riot on both sides. Even Justice Ginsburg got in on the act, opening her dissent by saying, “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” (Ginsburg actually has a history of including biting sarcasm in her opinions.) Not to let facts get in the way of a good controversy, but once again everyone seems to be getting it wrong. There are three points I want to highlight for your consideration.

This case has very little to do with religious liberty. The key component of this case wasn’t whether persons or groups could opt out of such mandates when there was a clear religious objection. In fact, that was taken for granted. The Department of Health and Human Services (HHS) already had accommodations in place to cover employees of non-profit organizations with similar objections. The question was whether for-profit entities could similarly opt out and under what circumstances.

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the government from substantially burdening a person’s exercise of religion except under certain specific circumstances. The question at hand was, “What constitutes a ‘person’?” Unfortunately, the RFRA does not define the word. Writing the Majority Opinion, Justice Alito argued that the under Dictionary Act, the word “person” can be used to include corporations unless the context dictates otherwise.

I’m not endorsing this logic per se. But we need to acknowledge the gray area that exists here. Should we give non-profit religious organizations First Amendment rights but deny them to for-profit religious corporations? We may need to look at this in a new light. Should my neighborhood co-op, which offers local and organic produce, have freedom of speech rights? Should they be able to contribute to political candidates or publicly support laws that benefit their business? Should they be able to object to elements of laws due to moral consideration (GMOs, for instance)? I can’t say I have a good answer. The law is all about drawing arbitrary lines – look no further than the legal drinking age or which mood-altering substances are legal and which ones aren’t. When we look at when groups of people are acting in concert, where do we draw the line between the ones that get First Amendment rights and the ones that don’t? That’s the key question here.

None of the contraceptives in question are abortifacients. The four contraceptives that Hobby Lobby objected to were two types of intrauterine devices (IUDs), Plan B (levonorgestrel), and Ella (ulipristal acetate). Intrauterine devices work by preventing fertilization. Plan B and Ella work by delaying the release of the egg. The drug used to induce abortion, mifepristone, is not on the FDA’s list of approved contraception. The National Catholic Reporter made these distinctions in 2012. “Church officials and others have argued that because these three contraceptives are abortifacients, the government is forcing them to participate in the distribution of devices and drugs that cause abortion. The reality is that there is overwhelming scientific evidence that the IUD and Plan B work only as contraceptives.”

Rather than being a victory for the pro-life agenda, restricted access to contraception will lead to more abortions. Earlier this month, Julia Stronks, a Christian political science professor at Whitworth University and Jeffrey Peipert, a Jewish family-planning physician, wrote an op-ed together for Roll Call. “The main barrier to widespread use of the most effective contraceptives has been cost.” An IUD implant, for example, costs around $700 which is prohibitive for many people. Looking at a pilot contraceptive program in St. Louis, Stronks and Peipert argue that free, informed access to IUDs resulted in 80 percent fewer abortions among participants compared to the national average. “Imagine up to 800,000 fewer abortions. No matter your faith or political beliefs, our hunch is that we can all agree that fewer unplanned pregnancies and fewer abortions would be a blessing.”

There is plenty more that could be written about this case – and plenty more will be. In the end, however, this is a case of making mountains out of mole hills if there ever was one. Justice Kennedy wrote in his concurring opinion, “At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” Rather, it is a narrowly-tailored decision that will protect the interests of a select few people. It is likely that the HHS will extend their plans to cover any persons shortchanged by this decision. And with any luck, education on contraception will increase and people will make more informed decisions. Maybe Congress will even act to determine precisely when corporations can claim rights. Who knows? But when this loses momentum and all the pundits stop spinning, I suspect very few people will notice the difference.

Hobby Lobby

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