The much
awaited verdict on the Hobby Lobby religious freedom vs. ObamaCare birth
control coverage is in. As expected there
has been much ideological and partisan based spin on the 5-4 verdict in favor
of Hobby Lobby. Conservatives have
hailed the decision as an affirmation of religious freedom and liberals and
feminists have condemned the verdict in any means they could think of. It has been described as an assault on
women’s rights, health, and personal freedom of choice. Others have described the decision as one
made by “an all male majority”, as if this were unusual on a court comprised of
six men and three women. The implication
is that the male justices are somehow ineligible to vote in cases involving
female citizens as a group. It is clear
however, that the vote broke down along the familiar conservative-liberal
voting blocs.
However,
most of the “analysts”/pundits ignored the basic facts of the case. This was not a constitutional case involving
first amendment rights. It was not
primarily a birth control case involving women’s access to birth control
products. The case was a statutory case
decided by the justices on their interpretation of the 1993 Religious Freedom
Restitution Act. The legislation was
passed by 97-3 in a Senate controlled by the Democrats and by voice vote in the
House also controlled by the Democrats and then signed by President Bill
Clinton.
The core
provision of the Act states that: ““Government
shall not substantially burden a person’s exercise of religion even if the
burden results from a rule of general applicability.”[3] “The law provided an exception if two conditions are
both met. First, the burden must be necessary for the “furtherance of a
compelling government interest.”[3] “Under strict scrutiny, a government interest is
compelling when it is more than routine and does more than simply improve
government efficiency. A compelling interest relates directly with core
constitutional issues.[4] The second condition is that the rule must be the least
restrictive way in which to further the government interest.”
Thus the Court’s majority found that Hobby Lobby’s
owners, who claimed that being forced to provide certain birth control products
which prevented a fertilized human egg from implanting in the uterus was the
equivalent of abortion and was an infringement on their religious principles as
protected by the 1993 Act. This
interpretation of the law thus did not address any direct impact on the female
employees, let alone the post-verdict exaggerated claims made by various
women’s advocates about a wholesale attack on women’s rights and health.
Essentially, the majority found that the ownership of closely
held, for profit corporations are entitled to the protections of the 1993
statute and that the facts of the case showed an insufficient “compelling
government interest” in imposing the birth control insurance requirement via
ObamaCare. They also cited the belief
that the requirement and the harsh penalties which applied for non-compliance
did not represent “the least restrictive way in which to further the government
interest.”These interpretations could certainly be debated and most likely were
the subject of discussions by the Court in their private deliberations.
On the dissent
side, which included all three of the Court’s female justices and the reliably
liberal voter, Justice Stephen Bryer, the focus of the minority opinion written
by Justice Ruth Ginsburg was largely about outcomes rather than the
applicability of the 1993 statute. This
is a typical orientation of the liberal bloc.
They want to interpret or reject laws to create outcomes which fit their
ideology based views of a just society.
Thus the emphasis was on the alleged negative impact on women’s health
which she mentioned forty-three times.
“. . . Women’s reproductive well-being is vital to both
their personal prospects and the country’s fortunes.”
While this generality is no doubt true, it is too overly
broad to rise to the level of a “compelling government interest”. There are many methods of birth control but
the most common is “the pill”, which became available in 1960. The Patient Protection and Affordable Care
Act which made health insurance coverage for birth control products mandatory
didn’t come into existence until March of 2010.
Was there an epidemic of female health issues related to the absence of
free birth control in the previous sixty years?
Indeed for throughout those six decades millions of women provided their
own birth control without widespread hardship or much controversy. Today, a variety of birth control pills are
available for around nine dollars per month.
The issue of insurance coverage has taken on symbolic/political
importance to feminist groups which outweigh its practical effects, as the
temptation for political pandering in the run up to the 2014 congressional
elections demonstrates. Here is Harry
Reid, Democrat Senate Majority Leader looking for votes sufficient to keep his
job as Majority Leader which is at risk.
“If the Supreme Court
will not protect women’s access to health care, then Democrats will,” Reid said
in a statement. “We will continue to fight to preserve women’s access to
contraceptive coverage and keep bosses out of the examination room.”
Despite all the hyperbole, Justice Ginsburg
did include one argument in her dissent that exposes the key flaw in the
majority opinion:
“.
. . A decision of startling breadth and it allows companies to opt out of any
law they judge incompatible with their sincerely held religious beliefs.”
While not precisely accurate since the
conditions imposed by the 1993 statute would still have to be met, this
decision certainly opens the door to an unlimited variety of such claims with
regard not too just ObamaCare but as Justice Ginsburg points out, “any law”
found objectionable on religious grounds by the owners of closely held
corporations and other types of businesses.
Supporters of Hobby Lobby were focused on the beliefs of parts of the
nation’s dominant Christian faith, but the Courts ruling applies to also to all
established belief systems and will no doubt be tested by smaller groups well
out of the mainstream of American religious practice.
With regard to this particular case, it seems
to defy credulity that the owners of Hobby Lobby being required to pay for
birth control methods as part of much larger health insurance plan ,that
neither they nor any of their employees were required to use, constituted a
“substantial burden” to the owners “exercise of religion.” Surely the Green family’s (the Hobby Lobby
owners) exercise of their Christian faith encompassed far more in terms of
belief and practice than this narrow issue whose application by their employees
might never have been used and which they, as owners, would never be aware,
much less be directly responsible.
The celebration by the political “Right” has emphasized the issue of
“religious freedom” but it is likely that there is considerable overlap over
satisfaction for what appears to be another crack in the foundation of
ObamaCare. While ObamaCare has never
enjoyed majority support and is seriously flawed, this case was not about ObamaCare. Nor, as stated earlier was it about women’s
rights. It was a narrowly decided case
about the eligibility of closely held, for profit corporations to make claims
under the 1993 Religious Freedom Restitution Act. The Court had already found in the Citizens
United vs. Federal Election Commission 2010 opinion that corporations had First
Amendment rights similar to individuals, or put another way, that individuals
acting under a corporate identity retained their individual First Amendment
rights. So it came down to the applicability
of the 1993 Acts standards of a “substantial burden” to religious exercise, the
“compelling government interest”, and the availability of “less restrictive”
way to further that interest.
No comments:
Post a Comment