Hobby Lobby

The U. S. Supreme Court' s decision last week in the now famous Hobby Lobby case has prompted a storm of outrage from those who saw an out-of-touch majority imposing its moral values on society as a whole, and women in particular. In essence, the Court's decision held that small "closely held" enterprises have the right to opt out of covering some contraceptive and birth control costs as part of their employee's health insurance if those methods violated their religious beliefs.

The Court then went on to buttress the scope of the decision in another case involving Wheaton College of Illinois, a religiously-based school, where it held the college did not have to fill out a form to be exempt from the new federal requirement that employers provide health insurance coverage that includes contraceptive coverage. Wheaton needs only to inform the government that it has religious objections to parts of the health care law, the Court stated. Wheaton maintained that filling out the form would violate its religious beliefs.

Is this the start of the "slippery slope?" We'll have to wait and see.

While we disagree with the stance the Court's majority took in its 5-4 decision over Burwell vs. Hobby Lobby, it's worth pausing for a moment to consider its reasoning, and perhaps more significantly, the unintended consequences that could follow.

About the best thing you could say about the Court's decision is that it struck a blow for the freedom of businesses - at least some privately held businesses or more precisely the people who own and run them - from government mandates in general and for religious liberty in particular. The sometimes heavy hand of the government is not unassailable after all.

That's a good thing and not to be sneered at, because today, while that principle has been reinforced over an issue that many people find axiomatic - the right of women to obtain coverage for all potential birth control services as part of an employer's insurance plan, not just those an employee may be OK with - the next time around it could be for some other freedom. Privacy from unwanted and unwarranted government snooping over who you call on the telephone, for example.

That said, you could debate for a long time whether the value of religious freedom outweighs that of the woman who may be earning a barely sustainable wage and for whom the cost of paying for birth control services out-of-pocket is one more strain that an already tight budget can't easily absorb. To us, that's really the crux of the question.

The majority's opinion went to great lengths to limit the reach of it decision to the particular facts of the case presented by Hobby Lobby, a 13,000 employee company owned by a family who felt a requirement that they include certain contraceptive services they found tantamount to abortion as part of their employee health care coverage was objectionable. It's worth noting Hobby Lobby was OK with 16 out of the 20 possible forms of contraceptive methods, but not all.

However, it's hard to see how many other firms who could plausibly claim to be family owned or "closely held" won't be tempted to try for a similar exemption on religious grounds if they thought they could make the case. The best protection against that scenario might be the fear of incurring the storm of negative publicity and economic damage from consumer boycotts. This potential by-product of the Hobby Lobby case will be interesting to watch in the weeks and months ahead. Will the immediate outrage translate into a long term hit to the company's bottom line? And if it does, who suffers more - the owners or the employees?

However, the more intriguing scenario might be how far this decision could be stretched to accommodate other religious beliefs that might appear to come into conflict with state directives. Does a group have the right, for instance, on religious grounds, to avoid vaccinations? Despite overwhelming evidence that such vaccinations are an important cornerstone to public health, some -like certain members of Amish groups - have argued they shouldn't have to vaccinate their children before they attend public school. Could these groups make a case they too are closely held corporations, who are, after all, people? It's a slippery slope, as noted above.

The case takes a peculiar twist because of a 1993 law known as the Religious Freedom Restoration Act, which limits the leeway of the government to interfere with the free exercise of religion. The standard set 20 or so years ago - and supported by folks like then-President Bill Clinton and Sen. Patrick Leahy - was the "least restrictive means." The court apparently saw the contraceptive piece, mandated under the Affordable Care Act ("Obamacare") as not meeting this standard.

Nevertheless, this is a disappointing ruling in this day and age. For what seems an endless amount of time, the country has struggled over the so-called "culture wars" - the clash of an increasingly secular society that is trying, haltingly, to find a reasonable balance between private freedom and expression while respecting the rights of others who find meaning in more traditional values. But at some point, the zone of individual freedom has to be broad enough to allow people to conduct their affairs in their own way, as long as that conduct is not detrimental or a danger to themselves or others. After that, faith-based organizations have a right to make a case for their values, but the "buyers" have the ultimate decision.

One of the ironic aspects to the case is that it may well spur on those who are already convinced a government designed "single payer" health insurance plan is the way of the future. It's safe to assume that any public single payer plan would include birth control services as a matter of course, and those would be paid for out of public tax dollars. How an entity, closely held or otherwise, who might object to birth control or something else could opt out of that, might be the sauce for another Supreme Court case that will keep the constitutional lawyers and scholars busy for awhile.

Our best guess here is that giving a government-run, nationalized health service a boost wasn't what the owners of Hobby Lobby had in mind.

The bottom line here: While we respect the right of religious groups to argue that birth control and abortion are morally repugnant, for the vast majority of women, access to safe, dependable birth control is also an important freedom that has practical, real world consequences. In the long run, if your religion proscribes abortion, you don't have to have one. For other people, they are essential.


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