By David Gushee
Follow David on twitter: @dpgushee
The now-famous Hobby Lobby (HL) case finally has been argued before the Supreme Court, with a decision expected in June. I believe their claim should be denied. Here is my analysis. It is lengthy for an op-ed, but the details matter immensely.
Background: Coverage mandates in the ACA
The Affordable Care Act (ACA), which now looks like it will certainly survive, is the single piece of legislation that will be most remembered from the partisan-gridlocked Obama years. It seeks to expand access to health care and to reduce health care costs in the United States. You may have heard of it.
Among its manifold provisions is a wide-ranging preventive services mandate that includes the requirement that company health plans offer free coverage of women’s services such as annual checkups, mammograms, gestational diabetes screening, breastfeeding support, and much more. The list of standard preventive health benefits was adopted by the Obama administration from a recommendation from the non-partisan Institute of Medicine. Among these preventive services is the provision of all 20 current Food and Drug Administration-approved forms of contraception.
Based on religious liberty concerns, all churches are exempt from the “contraception mandate.” After much lobbying of the Obama administration after it promulgated less satisfactory rules (from a religious liberty perspective), the administration decided that all religious organizations, including Christian hospitals, charities and universities, can also opt out of paying for or covering objectionable procedures. Organizations such as the Little Sisters of the Poor (via the Becket Fund) are suing over this accommodation because they are not satisfied with the opt-out provision, which still requires that employees be given access to contraceptive services through the work-around of directing payment for these services through the insurance-issuer or another insurer instead of directly through the employer. They believe this involves them at least indirectly in a practice to which they object religiously.
It’s important to distinguish between religious organizations and businesses, a distinction well-established in U.S. law. Religious organizations such as the Little Sisters of the Poor are suing over a religious liberty accommodation they find unsatisfactory. For-profit corporations, such as Hobby Lobby, making a claim based on the federal Religious Freedom Restoration Act, now argue that the accommodation that has been extended to the religious organizations would be a “less restrictive means” of enforcing the contraception requirement among private business as well. This is what they argued for at the Supreme Court two weeks ago. This is a novel legal claim with wide implications that must be considered.
The Hobby Lobby case: Is the problem contraception, abortion or both?
Many Christians, including friends of mine, are among those who side with Hobby Lobby and against the administration on this matter. Their concerns are both specific and broad, both related to this case and to the next one and the one after that. I will also note pro-HL arguments not related to religion.
Some specifically object to having to pay for, or be the means by which, contraception is acquired. Their issue is with contraception; for some, the issue would be especially contraception for the unmarried. In passing, it is important to remember that a lot of young women, including those who have not been sexually active, are prescribed birth control pills for conditions such as anemia, irregular periods, hormonally-related acne and endrometriosis. Blocking contraceptive coverage would affect access to these standard treatments as well. Knowing this may be one reason why, according to the Public Religion Research Institute, support for mandatory contraception coverage is 15 percent higher among women than men. (Full disclosure: I serve on the PRRI board of directors.)
Other religious objectors have no particular problem with contraception, but they do not accept that intrauterine devices (IUDs) and morning-after pills (such as Plan B and ella, included on the list of FDA-approved contraceptives) ought ever to have been classified as contraceptives. Instead they believe them to be abortifacients, or abortion-inducing drugs/techniques.
Hobby Lobby itself is a particularly fascinating plaintiff here. Their public story has been that for many years they have offered insurance coverage of all FDA-approved contraceptives but not IUDs and morning-after pills, so they are simply asking to be allowed to keep doing what they were doing, and this on religious grounds.
Interestingly, Hobby Lobby concedes in the fine print of its legal complaint to the Supreme Court that its health plan did cover ella and Plan B until 2012, the time when it was preparing its suit against the government; they claim this was simply an unintentional mistake that was corrected when discovered. News also broke just recently that HL’s employee retirement plan is invested in mutual funds that include corporations that make the very products to which HL objects. I guess all of us need to pay better attention to where our 401(k) money is invested. There are ethical investment funds that screen for all kinds of issues, including this one.
An amicus brief from an array of medical professionals and organizations argues that morning-after pills (such as Plan B and ella) prevent fertilization but do not inhibit implantation, despite outdated product labels that still say something different. Their brief acknowledges that copper IUDs “could also act to prevent implantation” but cites studies suggesting this is not what really happens. Here is what the National Institutes for Health now says about IUDs.
No wonder people are confused. On the matter of morning-after pills, I searched the Mayo Clinic website — which supposedly has been updated recently to clarify public understanding of this matter — and within five minutes found this admission that Plan B can prevent implantation and this one that it does not, but that ella might work differently. See here and here for recent coverage of the scientific/factual issues in the religious and secular press.
One reason for this confusion may be that until the issue of implantation prevention was raised by religious dissenters it was not really an issue for most in the medical community. The matter is put this way in the amicus brief opposing Hobby Lobby: “Although Respondents and others may have differing personal views as to when life begins, the medical and scientiﬁc communities deﬁne pregnancy as beginning upon implantation [not fertilization]. While personal beliefs may dictate individual choices and values, they cannot alter established scientiﬁc standards and terminology: abortion refers to the termination of a pregnancy [which begins with implantation]. Thus, the term ‘abortifacient’ refers to — and should only be used in connection with — drugs or devices that end a pregnancy, not those that prevent it.” (Comments in brackets added by me.) So the confusion is partly definitional-categorical, with Hobby Lobby and friends claiming the issue is religious — and these medical professionals claiming the issue is a non-issue, because it has long been resolved by medicine and science.
The fact that Hobby Lobby’s owners — and many others — sincerely believe that morning-after pills are abortifacients based on a different definition of what constitutes a pregnancy and thus an abortion, and perhaps a different reading of what they think the science says, raises fascinating and disturbing questions about the interaction and sometimes the clash between sincerely held religious beliefs and scientific claims. Must the government grant the authority of every sincerely held religious belief? How would it distinguish between credible/rational and incredible/irrational religious beliefs? And are scientific claims always and only scientific claims?
Hobby Lobby II: Other concerns
Some critics are concerned not just with the specifics of contraception and abortion but with the way the government is defining which organizations will be granted religious exemptions. What exactly is a “faith-based organization”? The much-maligned four-part test of what constitutes a religious organization in the original Obama administration rules was dropped in the final rules in favor of a simple self-certification form, here, though many critics speak or act as if the original proposed rules were in force.
So the government does not define or make judgments as to which religious organizations get accommodated. However, if the Court decides corporations can have religious rights, this is a new frontier. It would put the Court/government in the position of having to determine which corporate religious beliefs are “sincere” and deserve to be accommodated, and which are not.
Friends of Hobby Lobby’s position argue that from a serious religious perspective religion is precisely supposed to permeate all of life. We — I count myself among such people — do not leave our religion at the church door. It goes with us into all of life. It therefore affects the mission of the nonprofits and in some cases even the for-profits that we establish.
Point granted. But this does not resolve the question of whether the fact that some business owners hold such convictions must lead the government to essentially shift the legal status of such for-profit businesses into the same category as churches.
One way to look at it is this: The whole point of establishing a corporation is to create an entity separate from oneself to limit legal liability. Therefore, Hobby Lobby is asking for special protections/liability limits that only a corporation can get on the one hand, and special protections that only individuals, churches and religious organizations get, on the other. It seems awfully dangerous to allow corporations to have it both ways. Numerous problems with treating a for-profit business like a church under the law are outlined here.
Some conservative Christians are concerned that a judgment going against Hobby Lobby and friends will pave the way for future setbacks on other matters of conscience. It seems obvious that the next issue worrying many Christians is homosexuality (of course). How much authority should such fears carry in determining this matter at hand?
Civil libertarians, meanwhile, are always concerned about expansions of government power, especially federal government power. They see this problem through that grid and respond accordingly. But libertarianism fits uneasily within a Christian ethic, or any other ethic, with a concern for the common good.
And libertarianism opens a door for the less principled. Today, shrewd business owners see an opening to reduce their expenses on libertarian grounds. Some just want to be left alone to do whatever they want with their health policy. Consider Eden Foods, whose founder and CEO is suing on the same grounds as HL, but has admitted in conversations with reporters that he doesn’t “care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that?”
I close with questions, especially from a Christian ethical perspective.
1) Do we really want to blur the line between the legal status of for-profit corporations over against churches and religious ministries?
2) Is there really no difference between an individual with an eternal destiny, a church with a Great Commission mandate, and a for-profit business? What does that say about our theological (and legal) understanding of persons and the church?
3) Wouldn’t a win for Hobby Lobby really mean that we would be ensuring that the religious convictions of the one (business owner/family) would then trump the needs (and convictions) of the many (everyone who works for that business)? Do we want to give business owners that kind of power? Cuius corporatio, eius religio?
4) What happens when, say, a Christian Scientist company owner decides not to cover any health benefits, or a Jehovah’s Witness company owner decides not to cover blood transfusions, or an anti-vaccination owner decides not to cover the MMR shots, or perhaps a trust-Jesus radical decides not to contribute to employee Social Security or a 401(k)? Do we really want to open up that Pandora’s Box?
5) Are critics taking seriously the public health benefits of no-cost contraception coverage, and the moral benefits of the likely dramatic reduction in the number of unplanned pregnancies and abortions? Or does their principled objection to contraception and/or (perceived) abortifacients totally trump data related to the actual impact of no-cost access to contraception?
6) Do we see any legitimate role for government — e.g., our elected representatives in Washington making public laws to advance public purposes, including public health? Or has anti-government libertarianism entirely eroded such convictions?
7) Can we see (again) how the effort to mediate the delivery of access to health care through company health plans is really problematic? A single-payer government plan would take the corporate religious liberty issue completely off the table.
This case is the perfect storm: it brings into one case passions many Americans feel about President Obama, health care reform, sexuality, government, women, abortion, science, culture, freedom and religion, especially Christianity. Now all the Supreme Court has to do is sort it out. This will be no simple chore. But on balance I would vote No on Hobby Lobby.