thoughts on Burwell vs. Hobby Lobby

Sorry to disappear abruptly around here a while ago. I simply lost interest in blogging about much beyond fandom, which I try to do at LiveJournal and Tumblr where most people I know in those circles spend their time. But the “Hobby Lobby” case, or more precisely reactions I’d seen to it, sparked my interests. As promised over at FaceBook, here are my thoughts on the issues I see involved in this case.

The too long; don’t read version, in my opinion, is that the court made a mistake. Hobby Lobby and other “closely-held corporations” are still corporations, not individual humans with religious beliefs and freedoms that can be violated. I also think it’s very bad policy and that if people like the Green Family are seriously concerned about preventing abortions they should do their part to make birth control as accessible as possible, particularly to low-wage workers like you see in retail. But equally as important, I don’t think of this case as a “women’s rights” issue, nor do I think it’s particularly hypocritical for Hobby Lobby to pay for vasectomies and Viagra but not hormonal birth control. For me, this is primarily an issue about fair treatment of workers’, not a woman’s issue per se. (I do think there’s some sexism and retrograde views on sexuality at work here, but I don’t think women’s rights are necessarily being violated qua women; perhaps qua employees who happen to be women.)

All of which will take some explaining, so bear with me here. And do keep in mind, this is just one person’s reaction to a complicated case. Even if you disagree with my points at the end of this, I thank you for respecting me enough to trying to see why I view things from this level.

1. Last Time, on the ACA…

So we’re all on the same page:

— Pre-Affordable Care Act (ACA or Obamacare going forward), most Americans who had health insurance got it through their companies. Employees received a tax benefit to subsidize their employees’ coverage, and employees also contributed to the plan. Companies chipped in as well, and this was often used as a recruiting tool and as a way to retain employees.

It’s worth noting: not all companies offered health insurance plans. Not all insurance plans were equally comprehensive, or as affordable. Not everyone qualified for plans because of pre-existing conditions.

— Enter the ACA. The goal (imperfectly achieved, for a whole slew of reasons) was to get everyone affordable access to healthcare through making insurance plans more widely available and checking some other kinks in the system. The ACA as I understand it utilizes a three-pronged approach here: require companies over a certain size to offer affordable insurance to their full-time employees, or pay a penalty; expand Medicaid so people living above but near the poverty line could enroll in it; and create insurance exchanges where people who wouldn’t have insurance otherwise could (indeed, must, or pay a penalty) buy insurances through private companies. The markets would also be subsidized using tax $$$ with the exact amount depending on the income of the person buying insurance.

I’m going to skip over my normal screed about how Obamacare is (and isn’t, and why) working and focus on just a few parts of this that matter to the Hobby Lobby cases:

(1) Before, companies could insure their employees and there was a tax benefit if they did, but they didn’t have to. Under Obamacare that’s changed and there’s a penalty if they don’t. The penalty is $3,000 per employee per year that buys insurance through the exchange (where they would receive tax subsidies), $2,000 otherwise.

(2) Before, there were no real obligations (at a federal level; I gather some states ran things differently) to cover certain services, or to make the plans affordable. Under the ACA the insurance plans have to cover certain services defined in the law. Crucially, this includes access to many contraceptives that some owners consider abortifacients. (More on that momentarily.) Failure to cover these services results in that penalty.

— All of which means that companies like Hobby Lobbies claim they’re being offered a choice between a rather hefty tax penalty or providing insurance they think would enable their employees to have abortions. As I understand it, their argument is that they can’t do the former because it violates their religious liberty, basically taxing them for following the requirements of their religion.

2. You Say ‘Potato’, I Say ‘The snuffing out of a unique, innocent human life’

I said above that companies like Hobby Lobby are fighting the ACA contraceptive mandate because it forces them to either provide insurance covering abortifacients (in their view) or else pay a sizeable financial penalty. Opponents of Team Hobby Lobby will be quick to point out that the drugs they’re refusing to cover (so-called “emergency contraception” that prevents ovulation or fertilization) don’t actually cause abortions. Abortions, after all, is the termination of a pregnancy, it’s aborting an embryo/fetus/etc. that has already implanted in the mother’s uterine wall.

And I’m fairly confident they’re right. Even, a reliably evangelical voice, ran a piece last year noting that both Catholic and evangelical figures were questioning whether the pill caused abortion. Out of fairness, I should point out they also quote the director of a pro-life group who argues in the other direction, though her point seems to be more an argument that we just don’t know yet. CT also mentions a group of German RCC bishops who dropped their objection to the morning-after pill being given to rape survivors at Catholic hospitals since they concluded it didn’t cause rapes. The piece also mentions a bioethicist at the evangelical Cedarville University, who argues there’s no evidence it actually causes abortion, though he insists there are other reasons to oppose the morning-after pill. For those of you keeping track at home, that’s two prominent voices (one evangelical, one Catholic) in the “not an abortion-inducing drug” column, and one that says we just don’t know and mothers should be informed of that ignorance, I’m guessing out of some kind of caution. That’s definitely my understanding of things: that the morning-after pill prevents conception, it doesn’t actually cause the woman’s body to dislodge an embryo and stop the pregnancy from continuing.

But pro-choice advocates do themselves a real disservice when they talk about the issue in this way. Keep in mind, the people who are opposed to abortion from the moment of conception thinks because life begins at fertilization. They’re not just concerned with not ending a pregnancy prematurely; they want to make sure, once a human life is created, it actually stands the best chance possible of implanting and developing into a born (and eventually mature, though I could say as much as any progressive person out there about just how “pro-life” GOP policies are after the child is born) human being. So ending a pregnancy is very, very bad, but so is preventing a pregnancy from starting once the egg has been fertilized. And the FDA website on Plan B notes (see Question #3) that, while the pill primarily works to prevent fertilization, it also thins the uterine lining, making it less likely that the embryo will implant and a pregnancy will begin. Now, my understanding is this warning doesn’t line up with the latest medical facts; see this 2012 piece in the NY Times. But if we’re (and I do consider myself pro-choice even as I’m anti-abortion, and definitely believe birth control should be widely available), if we’re going to answer the pro-life movement’s concerns, we need to realize it’s not enough to say Plan B isn’t an abortifacient. We need to also show why we’re certain it doesn’t allow fertilization but prevent implantation. Because most people who would be concerned with ending a days-old pregnancy would be just as concerned with medication that let a unique, innocent human life form but then made sure it was flushed out of the woman’s body with her next cycle.

On the other side, though, companies like Hobby Lobby should think long and hard about the practical consequences of denying the women who work there access to effective birth control. Yes, they provide access to many forms of birth control, but it is opposed both to emergency contraception and to intrauterine devices, which are sometimes the best kind of birth control available (for women who can’t take hormonal birth control for health reasons, for instance), and certainly carries the smallest risk of being ineffective because you missed a dose. Since retail workers tend to not early a lot of money, I’d imagine these people are most at risk to seek an abortion if they get pregnant without meaning to. Libby Anne, the well-known atheist blogger over at Patheos, wrote a really very-convincing piece showing that even if hormonal birth control pills, IUDs, and the morning-after pill led to accidental abortions (which I believe the best-available evidence says they don’t, but even if…), you’d still have less abortions when people use these contraceptive methods than when they don’t.

Speaking as one Christian to my siblings-in-Christ, I believe we have a religious and moral duty to speak the truth here, and to prayerfully consider whether our position on these medications is really affirming the value of human life and preventing actual abortions. In my opinion it doesn’t. As a political issue, I’m very glad the Supreme Court didn’t try to work out whether certain religious beliefs were true, but this seems worth saying. Just as it seems worth saying that many pro-life responses to the idea that Christians have no reason to oppose Plan B and other methods as long as it’s not an abortifacient. (I don’t think there’s any reason to be worried about them, morally, as a Christian; I do think there’s more to the issue than that.

3. Corporations are People, My Friends

Which brings me to the actual decision today. (I know, I’m taking forever to get there.) Basically Hobby Lobby and another corporation went to the Supreme Court to argue they should e exempted from the contraception mandate – that they should be free to offer health insurance that didn’t cover those contraceptive methods they find objectionable, and still get credit for complying with the law (no penalties, subsidies for the plans, etc.) As I understand it, the Court decided in their favor. It wasn’t an across-the-board ruling; it only applies to what’s called “closely-held corporations,” that is (according to the Wall Street Journal), a corporation where at least half its stock is owned by five or fewer individuals. So that could include a family business like Hobby Lobby, but there’s no real reason it has to. According to the WSJ; 90% of American companies are actually closely held.

The thing that really bothers me is that, even in the case of family corporations, these are still groups of adults who willingly chose to set up a legal entity (a “person”) that could do the business of the company without exposing them personally. I’m so not a lawyer and I’m a bit cautious about offering legal opinions, but to my layman’s brain this makes me think they wanted the company/corporation to be distinct from them as persons. Meaning that it could make statements in ways that didn’t reflect on the individual owners (and vice versa), if things went south financially there would be a limit to how much they personally were on the line for, that kind of thing. And it’s the corporation that’s on the line here to provide this insurance. Again, correct me if I’m wrong, but if they refused to provide the insurance then Hobby Lobby as a corporate entity would be liable for those penalties – not the Green family or whomever else owned the stock in the corporation. It’s awfully convenient for the Green family to suddenly act like their individual religious liberties are on the line. It seems like for there to be a religious freedom issue, the corporation would have to have religious interests. And I’m just not seeing how that’s the case.

(Again, to be clear, this is not a legal opinion. It’s more my philosophical opinion of what I think should be the case. I am not a lawyer. If it turns out that the stock-owners’ religious rights are violated by an imposition on the corporation, that seems rather odd and I’d think the law needs changing, or at least I need to have it properly explained why corporate personhood protects the owners from some risks but not things. But again, this is how I think things should be, not necessarily how they actually are.)

This is actually a time when I think corporations being people (in the legal sense) does us some good. Because it lets us say, as a society, that all corporations have some sort of obligation to their employees and the culture in general. Which they can fulfill even if it violates the owners’ beliefs. I hate to offer outlandish analogies (and am absolutely not saying the Green family’s beliefs are in this category), but say an owner was an Orthodox Jew who thought marriages between Jews and non-Jews were immoral (a position for which you could find a fair amount of Biblical support – not that all or even many at all Jews are racist in this way, of course). Say he thought an interracial/interreligious marriage was deeply immoral and didn’t want to have anything to do with supporting a family built on it. Well, the law says quite plainly you can’t not hire someone because of his ethnicity, and – again with the proviso that I’m not a lawyer – I imagine you’d be hard-pressed to make the case you should be allowed not to hire someone because they’re married to someone of a different race or religion. So the corporation would have to give the applicant all due consideration. But that wouldn’t actually force the owner to act against his interests because it’s not the owner that’s hiring the man whose lifestyle he disapproves of, it’s the separate legal entity of the corporation. His freedom isn’t infringed because no one forced him to do anything at all.

Now, institutions can have religious identities, I think. Churches, definitely are. So are parachurch institutions (like religious student clubs, for instance), as are nonprofits and schools and hospitals and thinktanks and advocacy groups – all of which you probably have to sign some sort of statement of faith or at least of conduct when you’re hired or even when you enroll as a student. And I don’t think this has to be limited to non-profits, either, but it does have to be signified somehow. Chick-Fil-A has always been closed on Sundays and was never shy about their evangelical identity; I would certainly have expected a more explicitly Christian work culture if I took a job there than at McDonald’s or Dairy Queen, even before the recent gay marriage blow-up. I was also reminded recently of a sign on the wall at Skin Thrasher’s (a local hot dog restaurant with thirteen locations around my corner of South Carolina.; yes, I just checked their website). The sign says the language you use in church is good enough for here, and there’s just this air of basic decency in the Southern Baptist mode about the place. Again, I can see an expectation there that you may not have to be Christian to work there but you should expect that kind of a work culture there.

This isn’t limited to evangelicals, or even Christians. All kinds of religious that that’s the kind of behavior they’re expecting, and as long as this is known by people who choose to work there before they take their jobs, I can see even a for-profit business having a certain religious character. But it has to be something employees can see when they decide to take a job there. If it’s going to restrict the options open to them, it can’t just come out of nowhere. And let’s be honest here. According to PolitiFact, Hobby Lobby covered Plan B and IUDs for years before they were (in PolitiFact’s words) “approached by an attorney from the Becket Fund for Religious Liberty about possible legal action over the federal government’s contraceptives requirement.” They also invest their employees’ 401K plans in, among other things, a company that manufactures Plan B and a lab where actual abortifacients are produced, as well as the Aetna insurance plan which covers these contraceptives. I’m willing to give them the benefit of the doubt and accept that maybe they weren’t aware of the details of their plans, that perhaps this case wasn’t so politically motivated as it seems at first glance. (That’s what they claimed in the WSJ article paraphrased by PolitiFact [sorry, it’s behind a paywall so I can’t do better than the paraphrase]; they’ve not clarified about the 401K that I can find.) But if the corporate executives aren’t aware that their insurance plans cover what they now call abortifacients, how obvious could it be to someone applying for a cashier’s job?

In any event, I’ve not seen any evidence presented in the coverage I’ve heard of the case (and I’ve been following it pretty closely) that employees should know they were signing on to work with a company with religious identities that might affect their compensation. It’s all been about how the Green Family (= the owners of Hobby Lobby) would have to pay for things they find morally objectionable. And that seems to be the whole purpose of a corporation, to distinguish the owners from the corporate entity.

4. Is This a Woman’s Rights Issue

One last thing before I give this a rest. I’ve been seeing a lot of people talk about whether this is an issue of fundamental rights for women, or just women’s rights full-stop. I think we have to be very careful here, and the way we talk about this issue really needs refining. Because while I think we do have a right to (affordably) access medical care necessary for our well-being, it’s not 100% clear that women even at those companies will lose that right.

When we talk about freedom and liberty, at least in philosophical circles, there are lots of different ways that concept is used. Two are worth spelling out. First there’s the freedom from external constraints, which I’ve seen labeled as negative freedom. For instance, say there’s a public school in town and the school district has a requirement that everyone enroll there or in the private school across town or be homeschooled, but you could never financially afford either the private school tuition or to lose one parent’s salary to have him or her stay home. Do you have educational liberty here? Well, if we mean negative freedom there’s nothing aside from your own situation, your own lack of money that’s constraining your choice – nothing external is forcing you to send your kid to the PS. But you certainly don’t have the ability to actually act on any other choice. And that’s what philosophers generally mean by positive freedom, it’s the power to actually make a different choice. In this situation, you may have negative freedom but you certainly don’t have positive freedom.

Now, no one’s actually talking about making contraception illegal to access or otherwise keeping people from buying all the contraception they can afford. I mean, yet – I’m fully aware of the scary things coming out of some peoples’ mouths on that front, but that’s not the topic we’re talking about in this court case. So if negative freedom is all we’re concerned with, this court case doesn’t take away the rights of women working at Hobby Lobby. Positive freedom, the issue’s trickier. I poked around tonight, and a single dose of Plan B costs about $47 on IUD’s, including the contraceptive itself, the implantation, and medical consulting costs about $500-$1,000 at a Planned Parenthood clinic, probably more at facilities that are less dedicated to making family planning affordable.

Now, to me $50 to prevent a pregnancy seems like a bargain compared to the costs of an abortion or pregnancy. (And that’s without adding in moral and emotional factors that make those latter options far less than ideal.) The physical side effects of Plan B can be extreme – I’ve read about them and can’t imagine any woman voluntarily going through that process twice – but financially it’s doable. An IUD probably less so, but then, that lasts for five years at least. Setting aside $200 over the course of a year seems doable to me with my income. But if I was working in retail? Out of fairness, Hobby Lobby’s pay rates seem better than most ($13 for full-time, $9 for part-time per this article), but even so if I was trying to raise a family on $520 a week before taxes, and that’s even assuming I had full-time status (most stores keep even permanent employees at part-time status these days), that could be a hard nut to crack. Whether I really have positive freedom in that situation would depend on a lot of factors, but I can see a woman struggling to afford it without the insurance coverage she’s legally entitled to.

So while I think women have a fundamental right to health care access, including access to the contraception their doctors recommend for their personal health situation (because sexual health is a part of health, too, even if we’re talking about the lady-bits), I’m not entirely sure this decision means the women affected by it lose that right. I will say, I’m feeling much more sympathetic to this point after I read about their pay-rates than I was before; that’s much better than minimum wage, though still could be a tight budget, and is one really good way to actually give employees more liberty without restricting employers’. (The other way I can think of to accomplish this is to have tax-supported funding so any person with health insurance that doesn’t cover some contraception would be eligible for Medicare coverage of those services at no cost beyond the uptick in all our tax bills, so individual employers weren’t obligated to directly enable something they consider immoral.)

I’m also not really bothered by the fact that Hobby Lobby covers vasectomies but not certain kinds of female birth control. Not because I don’t care about women (I do happen to be one…) but because the moral issues are entirely different. Even if it doesn’t work, the absolute worst a vasectomy could do is lead to a pregnancy you weren’t planning on; there’s simply no way it could lead to fertilization-but-not-implantation. Similarly, Viagra simply doesn’t run into the same kind of ethical issues that Hobby Lobby thinks IUDs and Plan B pose. I think Hobby Lobby is absolutely wrong on the medical facts in both those cases, but it’s not like they’re willing to risk an abortion (or embryo-cide, or whatever we need to call it) so long as it lets men have sex.)

But there are so, so many other reasons to to have a problem with this approach. As ThinkProgress pointed out, there’s a messaging problem, and this decision does underscore the mistaken idea that these methods of birth control cause abortions or even kill a human fetus. The TP piece points to an Ohio lawmaker who argued that public healthcare (I’m assuming things like Medicaid, but perhaps coverage for government employees as well?) shouldn’t cover IUDs because it subsidized abortion. And it sends the message that birth control isn’t “real” health care, and can be sacrificed if it violates someone else’s moral beliefs in a way we’d never agree with in (e.g.) the case of blood transfusions if your employer was a Jehovah’s Witness. Birth control is just good public policy IMO, both from the perspective of minimizing abortions and from a general minimizing-strain-on-social-services-and-welfare-usage vantagepoint. Then there’s the privacy issue where, assuming your employer is okay with contraception used to address non-contraceptive purposes, where you basically have to divulge your personal medical information to your employer when it’s just not his business. And perhaps most importantly, it gives employers the right to decide how employees will discharge their earned benefits, which is probably the biggest concern of all. (That last point needs more elaboration, I know; but it’s late and I’ve just passed 4,000 words so I’ll leave it unexplored for now.)

I do suspect there’s some sexism going on here – this push against not only abortion access but birth control fits in a little too neatly with the history of men making sure women didn’t have consequence-free sex. Does it take away a right women should have? Possibly, depending on who we’re talking about and their situation, and how we define freedom. More likely it’s an imposition but not enough to take away their liberty.

That doesn’t mean I think this decision is a good one. It’s bad for workers, bad for privacy, and bad as a way to actually prevent abortions from happening.


Or at least that’s how it seems to me. Thanks for bearing with me as I delved into this complicated set of issues. As I said at the beginning, I don’t expect everyone to agree with me, but hopefully for the people who were asking my opinion, this will explain a bit of my views.

One Comment

  • Posted July 4, 2014 at 7:30 pm | Permalink

    I’ve seen this issue mentioned in lots of places and wondered what it was about, so many thanks for you . Here the NHS provides such services free of charge. Viagra is rationed but contraception is freely available.

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