Yesterday, the Supreme Court heard oral arguments in the case of Sibelius v. Hobby Lobby, a case which contests the Obama administration’s decision to hold for-profit companies with religious owners and missions to the provisions of the Affordable Care Act. Specifically, those that that say they must provide insurance for birth control. Many feel the case would serve a similar purpose to Citizens United in the sense that it would allow the Establishment Clause of the First Amendment to apply to corporations as well as individuals.
Though libertarians are nearly-unanimous that the Affordable Care Act is probably a bad idea, there is room for debate as to whether or not Hobby Lobby, insofar as it is a for-profit company, should be made to comply with this regulation. First Amendment protections, equality under the law, patriarchy, feminism, and women’s equality are all factors at play here. Let’s see what the TOL writers have to say:
According to one popular press narrative, this case is about women’s reproductive rights. According to the conservative line-of-thought, it’s about an ever-growing government encroaching into people’s private lives and overriding their freedom of conscience. Let’s be real though: both sides are being loony. To the feminist left, I’d ask why they haven’t been pressing for an OTC pill this whole time (instead of being co-opted into propping up the Democratic Establishment’s new entitlement program)? And to the Right, I’d ask: why, of all the fights you could have picked against Obamacare or in defense of religious liberty, did you have to pick contraception? It’s almost as if they have a “woman problem.”
I’d like to parrot Sotomayor’s take on this issue, namely, how does a public company define the religion that it practices? Is it the religion of the shareholders? Corporate executives? What about employees? And how much of the business itself being dedicated to religion–when does it itself become a religious institution? Once Hobby Lobby starts answering these questions, they fall into a dangerous trap where they must somehow measure how religious their organization is, a precedent no one wants to set.
Corporate personhood is not a new thing, and the only reason liberals think that it is is because they haven’t been paying attention. We created it so that we as a society could get the benefits that come from having them (which I outlined here forever ago). But there are still key differences—we tend to regard actual people as inherently valuable, whereas a corporation is valuable only for its use. As such, they should be treated as a commodity that gets privileges to the extent that it helps them serve their purpose. I buy the Citizens United logic that a corporation can and should have a protected free speech right. I’m not sure to what extent it makes sense to give a corporation protection under the Establishment Clause. How does one define a religion for a corporation? Why does a corporation really need religious protection? Ultimately, I’m not convinced that it does in order to render the services inherent to that corporation.
I will say, though, that AuntyM is right on the money on the real fix to the problem: Over the Counter birth control.
I’m non-religious and very much pro-choice; the Greens’ values are not mine, and I frankly would not want to work for them knowing their opinions about my reproductive rights. That being said, I’ve always thought Libertarianism is the radical notion that you don’t know what’s best for everyone else, which would include people I strongly disagree with. Of course, that’s the fundamental problem with the contraception mandate: it’s based on a one-size-fits-all approach to coverage.
The Greens have a value set that’s becoming increasingly rare, and in my opinion, that’s a good thing. I think if they’re allowed to operate their store as they see fit, they’ll lose quite a few valuable employees, and very likely customers. But the Greens are still entitled to their values, so long as they don’t force them on others, and I highly object to the idea that a clearly laid out and voluntary employment contract amounts to forcing employees to abstain from contraception. My only problem with their case is that I don’t think objections should be limited to religious freedom.
The other glaring elephant in the room is that these drugs should require neither a prescription nor several hundred dollars to obtain. Drug costs are ridiculous, in no small part due to patents backed by the state. America’s healthcare crisis used to be that medical care was too cheap; now it’s that we can’t get even the most basic care without insurance. Knowing that, we should recognize that the real enemy is not Hobby Lobby.
I don’t have a strong opinion on this from a legal standpoint. I just know I have a problem with religious exemptions. I do think Hobby Lobby should be able to choose what sort of benefits they provide their employees. However, I dislike the notion that there should be exemptions for them. As I always say, if you make exemptions (or exceptions) for one, then you should do it for all because otherwise it’s just not fair. What makes them so special that they should be able to opt out of the parts they don’t like? Although, on some levels (even if it’s not realistic at the moment), it would be easier to just do away with the ACA. A girl can dream.
I will rehash the line of argument from my debut post, as I think it is applicable here: employer-employee contracts are not tantamount to coercion (however paltry your job options are). In seeking out and accepting a position from a religiously-affiliated employer, you accept the terms of the contract- whether we are talking Morality Clauses or a healthcare plan that does not include coverage for birth control or abortion services. But this freedom to “deny” birth control coverage should be extended to all private enterprises.
I do get the sense that champions of the Hobby Lobby are selective about what and whose freedoms they are willing to protect. I doubt that they are doing this from a principled defense of liberty-across-the-board, freedom of contracts, association, and all that jazz (I admit, that is presumptuous of me). I mean, would they swoop in to protect the freedoms of atheists, secularists, and the non-religious?
And as others above already asked, why aren’t liberal feminists advocating for more accessible, over-the-counter birth control? If some of them are, then their voices are not as audible as those who are narrowly focused on pressuring the government to issue and enforce this mandate. If they are worried about affordable birth control, they should take a look at the heaps of regulations that affect the prices of birth control and the economic liberties that would augment a woman’s independence (tell me again how the tethers of government foster independence?).
Both sides need to understand that this issue concerns more than their favored constituencies and pet causes.
I don’t find the arguments in opposition to the ACA’s mandate that religious institutions be forced to offer contraception to be anti-woman at all. Women and birth control are not the issues here, freedom of choice is. No organization, business or institution should be forced into offering anything; and if people dislike the services an organization offers, they can chose to take their business or services elsewhere. If a healthcare plan that covers contraception is personally important to an individual, then they will intentionally seek employment at a place offering such a health plan. It infringes on no one’s “right” to birth control if some businesses chose to leave that out of the coverage they offer.
Hobby Lobby is completely justified in choosing to fight the mandate, and it would behoove us all to devote our attention and efforts to also fighting the Affordable Care Act instead of opposing Hobby Lobby for standing up for principles they believe in.