Some Thoughts on Hobby Lobby

I’m riffing here and in a nearby post on The Wall Street Journal Law Blog‘s excerpts of a couple of opinions from this week’s Supreme Court Hobby Lobby decision. That decision can be seen here.

The excerpts in this post are from Justice Ruth Bader Ginsburg’s dissent.

Page 8 of the dissent: The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the [Affordable Care Act] would otherwise secure… In sum, with respect to free exercise claims no less than free speech claims, “[y]our right to swing your arms ends just where the other man’s nose begins.”

This is nonsense. “Corporations’ employees and covered dependents” have no legitimate interest in company-paid, or insurance-paid, contraceptives. This is the sort of thing that’s plainly user maintenance, and belongs in the pocket books of the user. Besides, as a practical matter, contraceptives just aren’t that expensive. Another aspect about this claim that fascinates me is a bit of history. It used to be the case that offering a dental plan or health coverage was a business competition matter in the market for quality employees. That got nearly completely morphed into a manufactured “right.” Now Justice Ginsburg is busily (and cynically, say I) attempting to manufacture a “right” to contraceptives paid for with OPM.

Contra Ginsburg’s other claim here, women are not prevented from exercising their own religious beliefs. They remain free to practice their beliefs, and as the separate matter that this truly is, they’re free to obtain the contraceptives of their choice. They just don’t get to force other people to pay for them, any more than, oh, let’s say, a Presbyterian gets to force a Lutheran to pay for the former’s church. As Ginsburg noted in the above excerpt, “[y]our right to swing your arms ends just where the other man’s nose begins.” That applies to both people’s arms.

Pages 19, 33-34: The Court’s determination that [the Religious Freedom Restoration Act] extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private….

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?

I agree with Ginsburg’s argument on the extensibility of the exemption from closely held corporations to “corporations of any size, public or private,” and I hope she’s right. On what basis would a government claim that the owners of a closely held business, being small in number, have a legitimate claim on exercising their religious beliefs through their business, but the business owners of a large corporation (the shareowners of GM is one example bandied about in this context) must set aside their religious beliefs for the sacrilege of having bought shares in that company, or become partners in a large, interstate law firm?

On the potential for a variety of religious exemption claims, I certainly hope so—that’s what the Free Exercise is about: preventing government, especially, from dictating what a group’s religious beliefs must be, or how they must exercise those beliefs that are government-approved.

Pages 23-24: Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children.

Not at all. Eliminating the Contraceptive Mandate does not at all prevent women from getting the contraceptives of their choice (and so the actually rare health problems associated with pregnancies, unwanted or not). Women just won’t get to shift the cost of their choice—including their choice to use contraceptives at all—onto others.

Either we have Free Exercise, or we do not. There’s not much middle ground (there is some), but that middle assuredly cannot include government’s mandate that a man provide must for another that which his own religion bars him from providing to himself.

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