Supreme Court Rules For Coporations In Hobby Lobby

Genuine-Faux-Religious-Freedom

You can read the ruling in pdf form here, and Ginsburg’s mammoth, strongly-worded dissent here. Sarah Kliff sums up the ruling in three sentences:

1. A federal law called the Religious Freedom Restoration Act was written to protect individuals’ religious freedoms — and on Thursday, the Supreme Court ruled that, under RFRA, corporations count as people: their religious freedoms also get protection.
2. The requirement to cover contraception violated RFRA because it mandated that businesses “engage in conduct that seriously violates their sincere religious belief that life begins at conception.”
3. If the federal government wanted to increase access to birth control — which they argued was the point of this requirement — the Court thinks it could do it in ways that didn’t violate religious freedom, like taking on the task of distributing contraceptives itself.

Technically speaking, this decision applies only to “closely-held” corporations (which are about 90% of all American corporations – effectively, any corp that isn’t publicly traded on the stock market), and only to cases involving religious objections to contraception.

However, this decision could vastly expand the scope of the Religious Freedom Restoration Act (RFRA) by providing a precedent for future lawsuits by corporations who (for example) feel religiously burdened by providing health care coverage to the spouses and children of gay employees rush to sue, or corporations run by Jehovah’s Witnesses who don’t want to offer blood transfusions in health coverage. Indeed, Ted Cruz today gleefully predicted that there will be “hundreds” of RFRA cases seeking to build on this decision.

Notably, Justice Alito, writing for the majority, claimed that this decision won’t impact female employees of Hobby Lobby because the Federal Government could extend the same “accommodation” to Hobby Lobby that it has offered to religious non-profits like Little Sisters of the Poor. However, that accommodation – which asks corporations to sign a statement letting the government know that they won’t be providing contraceptive coverage – has been sued by religious conservatives, who say signing such a form contradicts their religious beliefs – and Alito’s decision vastly increases their chance of winning. At least one Judge, in light of the Hobby Lobby decision, sees the wind blowing that way:

Acting swiftly in the wake of the Court’s ruling on Monday, and relying directly upon that decision, the Eleventh U.S. Circuit Court of Appeals on Monday blocked all enforcement (pdf link) of the mandate against an Alabama Catholic TV network, a non-profit entity. The concurring opinion of the Court of Appeals, written by Circuit Judge William H. Pryor Jr., argued that the accommodation… is itself likely to be struck down.

The Friendly Atheist has a round-up of reactions from atheist and humanist organizations. A typical example:

Amanda Metskas, President of the Secular Coalition for America, said today’s decision by the court will allow employers to impose their religious beliefs on their employees and interfere with the employees’ personal health care decisions.

“This is a sad day for anyone who believes in true religious freedom. With this decision the Supreme Court set a terrible precedent for religious interference in individual choice,” Metskas said. “This decision allows for-profit business owners to impose their religious preferences and practices on their employees, leaving the religious freedom of millions of Americans at the mercy of their individual employers.

I highly recommend Scott Lemieux’s critique of the opinion, and also Ian Millhiser’s.

(Read more “Genuine Faux” comic strips here.)

This entry posted in Abortion & reproductive rights, In the news, Supreme Court Issues. Bookmark the permalink. 

79 Responses to Supreme Court Rules For Coporations In Hobby Lobby

  1. 2
    Brian says:

    So corporations are people… that can have stupid opinions you’re expected to respect based on feelings not facts… and you can’t just ignore them and make them go away… and they aren’t accountable for anything they do.

    Corporations are the most ‘Murican thing ever!

    because freedom. Can I please be German or Icelandic now?

  2. 3
    Copyleft says:

    Once we establish that corporations have all the rights of actual citizens plus a few more (and none of the responsibilities), the hierarchy will be much clearer. Now, get back to work, peons!

  3. 4
    Ben David says:

    1. Copyleft:

    Once we establish that corporations have all the rights of actual citizens plus a few more (and none of the responsibilities)

    You mean – like the responsibility to pay for services you consume, such as health care? It seems corporations are being laden with the responsibilities of personhood – while citizens are being infantilized.
    —————————————–
    2. I’m a transplanted American now enjoying the hybrid healthcare system in Israel – a government-funded basic basket of services, delivered by HMOs competing in a free-but regulated healthcare market.

    From over here – the big problem with US healthcare is linkage to work. Which results from a WWII-era tax loophole that let employees, but not individuals, deduct health insurance costs.

    Why on earth are liberal-leaning people even arguing about what contraception an employer should/could/oughta provide – they should be creeped out by a system in which your employer gets involved in these most personal decisions.

    (And no – wall-to-wall socialized medicine is not the only other alternative.)

  4. 5
    Harlequin says:

    Why on earth are liberal-leaning people even arguing about what contraception an employer should/could/oughta provide – they should be creeped out by a system in which your employer gets involved in these most personal decisions.

    Hm–gosh, yes, it doesn’t make sense in a vacuum for liberals to be pro-employer-provided health insurance. It’s almost like there was some other party involved who stonewalled even the briefest thought of a change to something else. But no–that’s pure madness!

    You mean – like the responsibility to pay for services you consume, such as health care? It seems corporations are being laden with the responsibilities of personhood – while citizens are being infantilized.

    Health care isn’t something my employer gives me out of the goodness of its fictional-person heart. It’s part of my compensation package for the work I do for them. Is it infantilization that I work for an employer that provides me free use of the public transit system? Free use of the fitness facilities? How about the part of the retirement package I don’t have to make a matching contribution for? The fact that health care is a common employment benefit is, as you say, a result of that tax loophole–but that doesn’t mean I didn’t take the worth of that benefit into account when choosing my job, just like the retirement package.

    In any case, of course, individual people who hire other people–such as folks with enough money to hire staff–also often provide health care for their employees. Meanwhile, I’ve never seen somebody get to claim their religion exempts them on a line-item-veto basis from United States law.

  5. 6
    Ampersand says:

    It’s a sign of how broken our legislative system is that, even though virtually all the thought-leaders on health care in both parties agree that it’s a terrible idea for health care financing to be mostly delivered via employment, neither party dares seriously proposing changing it. Because proposing a change that directly changes most voter’s health care arrangements would be to make your party very vulnerable to “they want to take your health care away!” attacks in the next election.

  6. 7
    Ampersand says:

    On an administrative fix to the Hobby Lobby decision | The Incidental Economist“>The Incidental Economist has more information on what exactly the “accommodation” for non-profit religious corporations is. The answer: It’s surprisingly vague.

  7. 8
    JutGory says:

    Ben David,

    It is not really a “loophole.” It is planned. And, it is planned because the tax code defines “income” in one of the most expansive ways possible, while carving out various exceptions.

    As it applies to my business, we pay 100% of the cost of the health plan and we pay for parking/transportation. There are specific provisions of the tax code to allow this. So, it is incorrect to call either of them loopholes.

    To close the “loopholes” would be to make these things taxable. So, instead of paying $140.00/month for each parking pass, I would be paying $140.00, plus 7.5% of that amount in FICA, AND there would be withholding on the employee’s paycheck for 7.5% of that amount, AND the employee would owe income tax on the total amount for the year ($1,680.00). But, as the employer, I would write all of that stuff off anyway. And, if they closed the loophole, some employees might say they would just prefer to have the money that would have otherwise been paid on insurance. Even then, they would not get the same amount. If the monthly premium is $220.00, closing the loophole adds 7.5% to my costs. So, the employee who would rather get the $220.00 in cash is not going to get $220.00. The employee gets X, where X is the number that, when multiplied by 1.075 will give you $220.00 ($204.65). And, that number will shrink too, after I withhold the 7.5% of the employee-side FICA. SSo, we are down to under $190.00. But, that does not even take into account the withholding to cover the income tax on $204.65.

    But, I think part of the rationale for these exceptions (and there are other rationales for other exceptions) is that, by paying for health insurance, you may not really use it and get a benefit from it, but you would be taxed on it anyway. In addition, because it is a non-monetary benefit, you might not actually have the money to pay the tax on it.

    -Jut

  8. 9
    JutGory says:

    Oh, and if they closed the loophole on health insurance premiums, it is not as if I suddenly have more money to pay the FICA taxes. I still have the same pot of money (actually, it is more of a coffee can) to pay all of the expenses with. So, I choose a cheaper plan that cost me the same amount as the better plan did before the loophole closed.
    -Jut

  9. 10
    Ampersand says:

    Well, if they ended the tax break, it wouldn’t make economic sense for employers to continue paying employees with health insurance at all (because of the administrative costs of offering health insurance). If there stopped being a tax break for employers buying health insurance for employees, it wouldn’t be many years before employers simply stopped offering compensation in the form of health insurance. (And, presumably, wages would rise a bit as employers would have to compete for employees on that basis, rather than competing by offering health plans.)

  10. 11
    JutGory says:

    Amp, that is probably correct (or certainly would be in some cases). However, if my group plan can offer lower premiums than I could find in an individual plan, I might keep the plan. But, yes, a small change in the tax code would have tremendous repercussions throughout the economy. (And, I don’t think either party wants to be responsible for that upheaval.)
    -Jut

  11. 12
    nm says:

    Yeah, I work in a very small business, where my employer pays part of our individually-purchased health insurance, and before the ACA I was almost totally screwed. Pre-existing conditions put both me and my husband in the very special we-can-charge-you-practically-anything-we-want-to pool (in my case, the condition was long-term and real; in my husband’s it was pretty much invented by the insurer so that they could put him in that pool), so that between us we had high premiums, deductibles through the roof, and exclusions of coverage in all sorts of areas.

    If the entire population had to buy individual plans, without much more stringent regulation of the market than the ACA provides, it would be health-care disaster for most people.

  12. 13
    Ben David says:

    Thanks to all for the thoughtful conversation – especially the business owner’s perspective from JutGory.

    1. Fair enough – it’s not “infantilizing” to take a work perk. But to have one’s health care decisions made by others…. creepy, and for me, it’s the only part of the semi-socialized Israeli system that still grates.

    2. Harlequin – It’s not really fair that to say that the Republicans are blocking all other alternatives. Ryan and others have put forward plans based on getting both employers and government out of what should be private transactions. Others have proposed using vouchers or health care accounts to ensure basic access to healthcare without nationalizing healthcare or building a government bureaucracy.

    It does seem that some people on the lib-progressive end can only see their favored solution – a wall-to-wall government system – and to them, any opposition to the half-baked omelet known as Obamacare could only be motivated by the Dickensian hard-heartedness of Koch-sponsored conservatism – with a side order of raaaacism, of course….

    You never do explain exactly why those (Dickensian hard-hearted) employers want this burden – rather than just paying salary and letting workers make their own choices. JutGory’s posts underscore what a mess it is for them. And Obamacare’s attempt to force people to buy coverage they may not want has understandably raised hackles.

    There are clear indications from around the world that free-market solutions do work. Israel’s earlier socialized medicine system was stodgy, inefficient (and therefore expensive) and rife with corruption. The free market reforms introduced since the 70s and 80s have worked wonderfully to improve quality, cost, and availability of care.

    Conservatives are not heartless – they simply see that government solutions are often problematic (the VA hospital system comes to mind – and the “subsidy” of college tuition that has in fact raised costs).

    Restoring the free market in health care and removing the barriers between consumers and provides is very likely to result in better – and more widespread – coverage. After the best quality/cost have been achieved, government can then come in and make sure the most needy receive basic care.

  13. 14
    RonF says:

    Brian:

    So corporations are people

    Hm. Why? Because they are being granted rights that people currently have? Let’s take a look at what the basis is for that thinking.

    Here’s the First Amendment:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    President Obama and others on the left like to note, this does not define what government must do for people, it defines what government cannot do. And that’s true. And it’s key. Note that the words “people”, “citizens” or any other word identifying individuals do not occur in the amendment. In other words, what it does not do is specifically grant people rights. It’s objective is to control the government. It does not control people – whether acting on an individual basis or acting together in concert in any kind of organization they choose to create, such as a corporation.

    It has been said of the Citizens United ruling that it gave corporations the same free speech rights as people. But that puts the government as the ultimate authority in the country. It takes the view – specifically rejected when the Founders explained their view of the proper role of government in the Declaration of Independence – that government grants rights. But this country was founded on the principle that government does not grant rights. People have rights given to them by their Creator (whoever/whatever that may be, it’s certainly NOT the Federal government). The government’s role is to preserve those rights from outside interference while the people themselves exercise them. So to say that Citizens United or Hobby Lobby granted corporations rights they did not previously have is wrong and based on a terribly reversed understanding of the role of the Federal government. What those rulings did was to ensure that the government would act to preserve the rights they already had, instead of improperly interfering with them.

    Justice Alioto states the application of this principle in his opinion:

    As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.

    Or, as Gov. Romney put it rather more succinctly, “Corporations are people too, my friend!”

    The advantages given corporations with regards to taxes, liability, etc. can certainly be regulated under the law. But those are not Constitutional rights. The fact that you have formed a corporation does not mean that you and the people within that corporation lose your Constitutional rights.

  14. 15
    mythago says:

    A rather more informed view on why the Court got corporate law wrong.

    But that’s OK. Piercing the fiction that corporations are separate from the people who run them is useful in my practice, and it was kind of the Court to create a tiny opening for me to hammer through.

  15. 16
    Ruchama says:

    Note that the words “people”, “citizens” or any other word identifying individuals do not occur in the amendment.

    “or the right of the people peaceably to assemble…”

  16. 17
    Ampersand says:

    But this country was founded on the principle that government does not grant rights. People have rights given to them by their Creator (whoever/whatever that may be, it’s certainly NOT the Federal government).

    Unlike the word “people,” however, the word “Creator” doesn’t appear anywhere in the Constitution.

  17. 18
    JutGory says:

    And, to follow up on RonF’s point (i.e. that the Government does not grant rights and that the Bill of Rights is a check on government control), we have the Fourth and Fifth Amendments. The Fourth Amendment mentions the right of the “people” to be secure in their “persons,” and goes on to proscribe what the Government can do. For those complaining about “corporations being people,” I am glad, because that means the Government can’t search and seize corporate property without a warrant (or to Ron’s point), the Government has not power to do so, personhood or not.

    Same thing goes for the taking of corporate property in the Fifth Amendment.

    So, to flip sides for a moment (slight de-rail, but not really), it annoys me when conservatives (typically) complain that terrorists, illegal aliens, what have you, “get protected by the same Constitutional Rights as an American citizen!”

    My response, after throwing a brick at the TV: Absolutely! Because, it is not a “right” the person has; it is a limit on Government power, regardless of against whom it is used! Yes, they have a right not to incriminate themselves, a right to counsel, a right to a jury and a right not to be subjected to cruel and unusual punishment, because the Government lacks the power to do any of those things (unless properly waived, etc.)!

    -Jut

  18. 19
    Ampersand says:

    In addition to the critique Mythago linked to (which was excellent), I thought this post was good: The Hobby Lobby Decision: A Summary & Explanation

  19. 20
    Ampersand says:

    I’d be more comfortable with conservatives saying that corporations are inseparable from the people running them, if the principle were consistently applied. Instead, conservatives only say that when it comes to situations where treating corporations as inseparable from the people running them is convenient to conservative policy goals.

    Consider limited liability, for instance – which prevents shareholders from being sued for more than the amount of their investment in the company, regardless of how much damage the company caused or how many people the company killed through irresponsible behavior. That’s not a right that any individual human person has; if I get sued by my neighbor for causing their puppy to die in my irresponsibly placed LARP deathtrap, the court can award them more than I invested building the deathtrap, more than what I invested in buying the property, and in fact more than my entire expected net income for the rest of my life. There is no limit protecting human people from liability for the damage they cause.

    The principle behind limited liability is that the corporation is, in fact, a separate entity from the people who own the corporation. And that’s an ENORMOUS legal benefit. What conservatives are saying is that those who own corporations should be able to take advantage of legal separation whenever that benefits them, but be treated as inseparable from their corporations whenever that benefits them.

  20. 21
    Myca says:

    Consider limited liability, for instance – which prevents shareholders from being sued for more than the amount of their investment in the company, regardless of how much damage the company caused or how many people the company killed through irresponsible behavior.

    Screw financial liability, how about criminal liability? If corporations are inseparable from the people running them, then corporate officers should see the inside of jail cells when innocent people die.

    —Myca

  21. 22
    RonF says:

    True, Amp – but the very concepts of either corporate or personal liability themselves are not found in the Constitution, but found in the law subservient to it. Unlike freedom of religion, freedom of the press or freedom of speech it’s not a Constitutional right. It’s established by law and can be changed by law to a far more greater extent than a constitutional right can, and unlike the constitutionally established rights can be much more sharply differentiated. If there was a clause in the Constitution that “Congress shall make no law abridging the right to sue a person for liability”, then corporate limited liability would be illegal – but there isn’t, so it’s not.

  22. 23
    Ampersand says:

    Ron, do you realize Hobby Lobby was not a first amendment decision? The decision was made based on the RFRA, a law passed by congress, not on the First Amendment. In theory, Congress can undo Hobby Lobby just by passing a law (although in practice, they won’t, except possibly if the Democrats end up having firm control of both houses of Congress sometime in the future).

  23. 24
    RonF says:

    So, to flip sides for a moment (slight de-rail, but not really), it annoys me when conservatives (typically) complain that terrorists, illegal aliens, what have you, “get protected by the same Constitutional Rights as an American citizen!”

    Quite true. It stems from the same misconception of what the roles of the Federal Government and the Constitution are. A lousy job has been done in this country in teaching it’s own citizens what their own Constitution means. Sometimes I suspect it’s because the people who teach it don’t know. Sometimes I think it’s because the people who teach it (or create the texts from which it is taught) don’t WANT people to know. I usually counsel people to apply Hanlon’s Law in such cases – but after what’s been going on at the IRS it’s getting harder and harder.

  24. 25
    Brian says:

    ronF, you say:

    Because they

    Who is this “they” you speak of? Are you speaking of the THEM that schizophrenics rant about?

    *copy/paste 500 words from the manifesto I work on when I can’t get a date*

    That’s what you sound like.

    Dude/dudette, do you even listen to yourself?

    I hope so, I can’t imagine anyone else does. :D

  25. 26
    RonF says:

    Oh, yes, I do – it was a decision based on an appeal by Hobby Lobby against conditions in the ACA based on the provisions of the Religious Freedom Restoration Act of 1993 (passed by a Democratic majority House, a Democratic majority Senate and signed by a Democratic President). Congress could have written an exception to the RFRA into the ACA – but it didn’t, so Hobby Lobby prevailed, and from what I can see, correctly. The quotes I’ve seen publicized from Justice Ginsberg’s minority opinion seem to be based on “This is lousy public policy”, not “This is a misreading of the law” – but the Court’s job is to determine the meaning of the law, not to make it conform to what 5 out of 9 of them think is correct public policy.

    No, what I’m responding to is the resultant plethora of complaints from the usual sources that echoed what they said about Citizens United, which I think I can fairly sum up as “The Supreme Court has given corporations the same rights as people!” Well, duh – what do they think they ARE? Martians? Whales? The buildings and physical assets? The bank accounts? Of course they are people, organized into a particular kind of voluntary association. There’s nothing in the Constitution that says “Congress may remove any guarantee of rights mentioned in this document for people acting in concert as an organization.”

    I’d be more comfortable with conservatives saying that corporations are inseparable from the people running them, if the principle were consistently applied.

    The consistency is that it’s entirely legitimate to legally regulate certain privileges of taxation, etc. that are not guaranteed by the Constitution, but it’s not legitimate to withhold those things that ARE guaranteed by the Constitution. By all means, if you want to expose corporate officers to personal liability feel free to propose a bill to do so. If it passes it’ll be entirely Constitutional, as there’s nothing in the Constitution that defines what a corporation is or what it’s privileges or responsibilities are. But a bill that touches what those officers’ (or any other members’) Constitutional rights are, whether acting individually or in concert as part of a corporate activity, is NOT Constitutional.

  26. 27
    Brian says:

    ronF you say…

    * a lot of legalistic twaddle.*

    Corporations exist so that people can avoid personal liability. That’s it, end of story. If your mind-erasingly nonsensical argument held water that it’s just an association of people, then no one would bother with one. They do it so when GM kills drivers or whatever, no one gets executed. End of list of reasons.

    The more words people use, the more they are trying to cover up that they have no truth.

  27. 28
    Ampersand says:

    I hope so, I can’t imagine anyone else does. :D [...]
    The more words people use, the more they are trying to cover up that they have no truth.

    Hey Brian, you know I love you, and I love seeing you on “Alas” – but please keep in mind that my blog is a namby-pamby space where we try to treat the other folks here with respect. (Check out the comments policy here). If you’re not going to go along with that out of respect for Ron, then please do it out of respect for me.

  28. 29
    JutGory says:

    Brian:

    Corporations exist so that people can avoid personal liability. That’s it, end of story.

    Damn! To think I wasted 16 weeks of coursework on this.

    But, no, that is not the end of the story. Limited liability is one aspect.

    Control is another. Without corporations, you would probably be stuck with partnerships as your primary business option. That is not a very good form for large-scale business endeavors because every partner would be an agent of the partnership. You can’t have 100 investors running around acting as each other agents (and subjecting them all to liability under Agency law. So, they came up with Limited Partnerships where the liability of passive (limited) partners was limited (as was their power to control the business). In a corporation, classes of stock can help maintain control over the company, and the concept of even having stock separates the owners from management.

    Alienability of interests is another. Stock can be sold. Partnerships, however, are voluntary and I can’t sell an interest in the partnership without the consent of all the partners.

    Another problem is that the death of one partner typically dissolved the partnership. A benefit of a corporation is perpetual existence. The corporation can continue to function even if a shareholder dies.

    Division of ownership. I believe that, in a common law partnership, all partners were equal stakeholders (absent a partner control agreement). A corporation (even a close one) allows for a 10% owner and two 45% owners (or any combination totalling 100%).

    Limited liability may be a big issue, but it is not the only issue.

    -Jut

  29. 30
    Brian says:

    JutGory:

    You’re a lawyer? I’m… I’m so sorry. Please don’t give up hope. Medical science is working all the time, I know it seems like they will NEVER find a cure. But some scientist somewhere will find a treatment, maybe some day you can find a productive role in society again.

    *or*

    Son, you’re killing your mother with your lifestyle choice. Have you tried just… NOT being a lawyer? Or at least not being so public in everyone’s face with it?

    (Better Barr? ;) )

  30. 31
    Franz says:

    Corporations exist so that people can avoid personal liability. That’s it, end of story.

    No the story is in fact (1) corporations invented (2) millennia pass, (3) limited liability invented.

  31. 32
    nm says:

    RonF: Justice Alioto

    I’m having a little fun imagining the late mayor of San Francisco on the Supreme Court.

  32. 33
    RonF says:

    Hah! Me too. Sorry about that!

  33. 34
    Brian says:

    Brian, you said…

    So corporations are people… that can have stupid opinions you’re expected to respect based on feelings not facts… and you can’t just ignore them and make them go away… and they aren’t accountable for anything they do.

    Corporations are the most ‘Murican thing ever!

    because freedom. Can I please be German or Icelandic now?

    http://www.rawstory.com/rs/2014/07/03/corporations-race-into-ginsburgs-minefield-to-claim-post-hobby-lobby-religious-exemptions/

    http://www.skynews.com.au/news/world/europe/2014/07/03/germany-adopts-national-minimum-wage.html

    Looks like waiting two flipping days was all it took for you to be shown to be right dude! and you did it without bloviating from your manifesto!

    Brevity is the source of wit!

  34. 35
    RonF says:

    Myca:

    Screw financial liability, how about criminal liability? If corporations are inseparable from the people running them, then corporate officers should see the inside of jail cells when innocent people die.

    If said corporate officers knew that conditions existed where this was likely but did nothing about it, I am in perfect agreement with you.

  35. 36
    RonF says:

    I’ve been reading comment after comment on various threads about this and I have to say that there seems to be a common element among the opponents of this decision. They seem to think that a) it’s bad public policy for corporations to be able to do this, so b) the Supreme Court should have decided the other way.

    Pointing out that it’s Congress’ job to set public policy and that the Supreme Court is supposed to base it’s decisions on the validity and Constitutionality of the law and not on whether or not they think it’s poor public policy is generally met with insults and invective. Nobody I’ve directed a comment to has addressed that issue. The fact that both the RFRA and the ACA were passed by Democratic Congresses and Democratic Presidents means nothing. They think the law is a bad idea, the Supreme Court didn’t change it, the Justices were appointed by the GOP, so it’s all the GOP’s fault.

    It seems to me that people just flat don’t understand the Supreme Court’s role in American government – or don’t care. The only critique that I’ve seen that even remotely approaches this issue from the viewpoint that the Supreme Court got the law wrong instead of “#WarOnWomen” is the one Myca cited (which I find at least reasonably stated if at the end unpersuasive). Everyone else just thinks that the Supreme Court’s job is to be a super-legislature. Even what I’ve seen quoted of Justice Ginsberg’s dissent is based on “this will have an effect I don’t like” not “these guys got the law wrong”.

  36. 37
    nobody.really says:

    Everyone else just thinks that the Supreme Court’s job is to be a super-legislature. Even what I’ve seen quoted of Justice Ginsburg’s dissent is based on “this will have an effect I don’t like” not “these guys got the law wrong”.

    An excellent argument – if you subscribe to the view that laws are unambiguous and admit only one possible interpretation, and that Chief Justice Roberts is just playing the role of an umpire calling balls and strikes. This is a popular view. Indeed, it’s only shortcoming seems to be its failure to conform to what we observe.

    The Legal Critics (among other schools of thought) conclude that in practice the courts are super-legislatures. The Supreme Court rarely lacks well-researched briefs supporting any possible resolution of any issue appearing before it. Thus the Court has the means to select any possible outcome. The choice of outcome is strongly driven by the choice of people to fill the black robes.

    The scope of the RFRA has ambiguities. Ginsburg notes that, as between two different interpretations of the law, one would permit clear, predictable, time-tested application of corporate law, and would permit the owners of Hobby Lobby to achieve the religious outcome they desire – provided they reorganize their business as a partnership. The other interpretation creates vast uncertainties, granting unprecedented legal recognition to shareholders and managers forthrightly using the corporate form as their alter ego. The majority opted for the latter.

    While I haven’t reviewed any cannons of statutory construction recently, I have to suspect there’s something along the lines of, “As between two interpretations of an ambiguous statute, choose the one that accords most closely with precedent; do not gratuitously assume that Congress intended to overturn precedent where a more modest statutory interpretation is available.”

    Finally, in what sense is the majority opinion not engaging in legislative reasoning? They say that the reasoning of their decision will not extend to granting exceptions to laws banning racial discrimination — yet what cannon of statutory construction supports this conclusion? I surmise the majority thinks that the public will swallow opposition to birth control, but not opposition to racism. It’s politics, as far as I can tell.

    But Ginsburg’s outcome would reflect politics, too. That’s the nature of the job.

  37. 38
    Ampersand says:

    Ron, there’s plenty of “these guys got the law wrong” in Ginsberg’s dissent.

    Also, how do you square your idea (which I basically agree with, in the sense that the SCOTUS should not be writing new law, but interpreting already existing law) that the SCOTUS is not a super-legislature, with the subsequent restraining order from SCOTUS which explicitly created brand-new notification rules for religious non-profits?

    From the Wheaton College order:

    …the Court orders: If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.

    That is literally rule-writing; the Court is tossing out the rules created by the legislature and executive and explicitly replacing them with brand-new rules written by the Court. (Albeit in a temporary order).

    And it’s not at all clear that the new rules created by the Court will actually function. There is a purpose to making someone fill out a form, and that purpose is to be sure that the person has given you all the necessary information (such as the name of their third-party insurer). What recourse does the government have if the Supreme-Court written rule turns out to not work?

    The unsigned court order, and the lengthy dissent by Sotomayor (joined by Ginsburg and Kagen), can be read here (pdf link).

  38. 39
    Brian says:

    spotted this while web surfing, the blog of U.S. District Judge Richard George Kopf. I love it when any person can cut through the BS and state things plainly. That he’s a GWB appointee just makes it even more perfect.

    He begins it with

    In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.

    http://herculesandtheumpire.com/2014/07/05/remembering-alexander-bickels-passive-virtues-and-the-hobby-lobby-cases/ has more.

    Also, it occurs to me as a non lawyer and despiser of legal fictions that if a corporation’s owner’s beliefs can affect what the corporation does, perhaps that wears away at the barrier between the owners and the legal fiction of a corporation. Any breech in a barrier has to go both ways. If shareholders can inflict morals onto a fictional entity, perhaps it is time the legal protections that shield shareholders from legal fines and jail time be done away with as well. I’d be totally for that.

  39. 40
    RonF says:

    In the Hobby Lobby cases, five male Justices of the Supreme Court, … decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” ….”

    Well, except they didn’t. Congress did. Which the majority opinion points out by citing 1 U.S.C. 1:

    the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;

    That, plus his focus on the sex and religion and the appointer of the justices making up the majority instead of what they actually said makes his comments rather suspect.

    The Supreme Court rarely lacks well-researched briefs supporting any possible resolution of any issue appearing before it. Thus the Court has the means to select any possible outcome.

    Indeed, the Court has the means to select any possible outcome, period. But in any case, just because a brief is well researched doesn’t mean it’s correct. It just means it sounds good and looks good.

    “To the average person, the result looks stupid and smells worse.”

    Which reminds me of commentary from Dave Barry. He wrote a story about having to replace a toilet in his house and finding that the results from using the low-flow toilet the law now requires people to use were unsatisfactory in that multiple flushes were necessary to remove what had been put into the toilet. In an announced effort to spare the tender sensibilities of his readers from the usual plain language, he used as a euphemism for what the toilet would normally be flushing out the sewer as “an act of Congress”.

  40. 41
    RonF says:

    Brian:

    I’ve seen a lot of comments both here and elsewhere that are in the same vein as your last one, which basically says that this decision should wear away the protections that corporate officers and stockholders enjoy from personal liability, etc. But where those fail is that there is a difference between privileges granted by legislative activity vs. rights protected by the Constitution. The former can be established, removed or changed by legislative action. The latter (to a great extent) cannot. The fact that a corporation can exercise their Constitutional rights does not mean that their legislative privileges change at all absent legislative action.

    Amp: you’re right, the Wheaton College situation is not good. The only excuse for it is that it’s temporary. When the Executive branch decides to start complying with Federal law and adjusts the requisite regulations accordingly it goes away.

  41. 42
    nobody.really says:
    In the Hobby Lobby cases, five male Justices of the Supreme Court, … decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” ….”

    Well, except they didn’t. Congress did. Which the majority opinion points out by citing 1 U.S.C. 1:

    the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals….

    To be clear, the statute begins, “In determining the meaning of any Act of Congress, unless the context indicates otherwise — ….”

    So, does the context of centuries of corporate law indicate otherwise? Some would say yes; some no. In short, the statute is indeterminate — which is to say, it means whatever five robed people say it means on any given day.

    [T]here is a difference between privileges granted by legislative activity vs. rights protected by the Constitution. The former can be established, removed or changed by legislative action. The latter (to a great extent) cannot.

    A fascinating assertion! Last I checked, corporations are solely the creation of statute adopted and maintained at the legislature’s discretion. As far as I know, a state is at liberty to rescind or amend its corporate statutes at any time. (Although there might be some “takings” issues involved in defending the property interests of existing shareholders?)

    So, is a state at liberty to amend its corporation statutes to say that corporations formed in this state have no free speech rights and no religious views? Or has the Supreme Court held that states must choose between having no corporations or having corporations with free speech and religious rights, but states are constitutionally barred from passing statutes creating corporations that do not have free speech and religious rights? That is, has the Supreme Court held that corporations have no right to exist, but assuming they exist, must have free speech and religious rights? And if so, could a state create a new business form that is not called a corporation, that grants limits on investor liability but does not grant free speech rights or religious rights? Etc., etc?

    Oh, what a tangled web we weave….

    [J]ust because a brief is well researched doesn’t mean it’s correct. It just means it sounds good and looks good.

    Ah. Whereas RonF has a litmus test for determining the whether a decision is correct, distinct from whether it sounds and looks good to him.

    But this merely proves my point that the Court acts as a super-legislature. Since the founding of the Republic the members of the Court keep espousing conflicting decisions rather than simply reporting out the objectively correct decision. What greater proof of mendacity could you want?

    Allegedly Justice Brennan would challenge each crop of new law clerks to name the most important rule in constitutional law. They would variously respond, “freedom of speech,” “separation church and state,” or “separation of powers.” Brennan would wave away each suggestion. When the clerks tired of guessing, Brennan would stretch out the five fingers of his hand: “Five,” he would say. “The most important rule of constitutional law is whatever we can get five votes to say it is.”

    We can criticize this story for its cynicism. Or we can acknowledge the truth it conveys: It matters not what any given Justice thinks is “correct” — unless that justice can also persuade four of her colleagues.

    I don’t mean to be unduly cynical. But I don’t mean to be unduly romantic. Judges aren’t gods. They put on their pants (when they wear pants) one leg at a time, just the same as the rest of us (who wear pants). And they evaluate arguments based on whatever looks and sounds good to them — just the same as the rest of us.

  42. 43
    Charles S says:

    [T]here is a difference between privileges granted by legislative activity vs. rights protected by the Constitution. The former can be established, removed or changed by legislative action. The latter (to a great extent) cannot.

    RonF, could you clarify whether you agree with the Warren court’s expansive definition of exercise of religion or whether you agree with the first 150 and the last 25 years of SC rulings on exercise of religion? You seem to be claiming something as a right protected by the Constitution that your normal method of constitutional interpretation soundly rejects.

  43. 44
    RonF says:

    nobody.really:

    So, does the context of centuries of corporate law indicate otherwise?

    The issue is not the context of corporate law. The issue is the context of the RFRA. The RFRA refers to “persons”. 1 U.S.C. 1 says (as you correctly point out), “In determining the meaning of any Act of Congress, unless the context indicates otherwise—

    the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;”

    My understanding of this is that in corporate law itself, law defining the structure, duties, regulations, etc. of corporations, the context of the word “persons” can be used to differentiate the corporate officers and the corporation itself. But in law external to corporate law, the word “persons” includes corporations unless the law in question itself makes the distinction – which the RFRA does not do.

    As far as I know, a state is at liberty to rescind or amend its corporate statutes at any time. (Although there might be some “takings” issues involved in defending the property interests of existing shareholders?).

    Here we are in agreement.

    So, is a state at liberty to amend its corporation statutes to say that corporations formed in this state have no free speech rights and no religious views? Or has the Supreme Court held that states must choose between having no corporations or having corporations with free speech and religious rights, but states are constitutionally barred from passing statutes creating corporations that do not have free speech and religious rights? That is, has the Supreme Court held that corporations have no right to exist, but assuming they exist, must have free speech and religious rights? And if so, could a state create a new business form that is not called a corporation, that grants limits on investor liability but does not grant free speech rights or religious rights? Etc., etc?

    It seems to me that the intent of the Constitution is that peoples’ rights are guaranteed under the Constitution, and that a very strict test must be passed to modify or regulate them (“You can’t yell ‘FIRE!’ in a crowded theater”, felons can be barred from keeping and bearing arms, etc.). The nature and applicability of the limits of such a test have generated decades of court cases and legislation, and will continue to do so. But the fundamental principle survives.

    On that basis I believe it would be very difficult for any State to successfully create a form of legal association of people that would not have a set of Constitutionally-guaranteed rights. It can certainly apply secondary regulations; e.g., a church that exercises it’s free speech rights by campaigning for particular political candidates would still legitimately lose it’s tax-free status. But if it then simply pays its taxes it can endorse as it pleases without losing its First Amendment rights of free exercise of religion.

    The States would end up in front of the Supreme Court having to show a compelling public interest as to why the people making up the corporation should have their Constitutional rights restricted. That would be interesting.

  44. 45
    nobody.really says:

    On that basis I believe it would be very difficult for any State to successfully create a form of legal association of people that would not have a set of Constitutionally-guaranteed rights. It can certainly apply secondary regulations; e.g., a church that exercises it’s free speech rights by campaigning for particular political candidates would still legitimately lose it’s tax-free status. But if it then simply pays its taxes it can endorse as it pleases without losing its First Amendment rights of free exercise of religion.

    Hypothetical: Suppose Congress identifies compelling governmental interests such as promoting the general welfare, making the economy more efficient, alleviating gender disparities, etc. Suppose it decides to promote these interests by offering a tax deduction to firms that provided health insurance to their employees – provided the insurance meets certain minimum criteria tied to promoting the compelling governmental interests. And suppose the social cost of dealing with unwanted pregnancies were greater than the social cost of providing birth control, thereby establishing the nexus between the birth control mandate and the compelling governmental interest.

    Firms that don’t want to provide the qualifying insurance are free to refrain; they just don’t get the benefit of the tax deduction. No foul there, ‘cuz the loss of a tax benefit is just a permissible “secondary regulation,” right?

    Think about it: If the RFRA does not prohibit making tax benefits contingent upon surrendering religiously-grounded free speech rights, it’s loopy to suggest that it would prohibit making tax benefits contingent upon providing insurance meeting certain standards designed to promote a compelling governmental interest.

    I don’t think this necessarily means that I win. I rather suspect this means that the Court is on the path to granting tax exemptions for religiously-motivated political speech.

  45. 46
    RonF says:

    Perhaps it could do that. Of course, given that it’s a tax bill, it would have to originate in the House ….

  46. 47
    RonF says:

    There’s also a distinction I want to raise. Many of you have responded about the questions I’ve raised on how people view the role of the Supreme Court by saying “Well, they pretty much can do what they want and find justification in the law.” There’s some truth to that. But that’s not what a lot of people are asking them to do. They’re not basing their argument on the basis of an interpretation of the law that favors their viewpoint. They just want the Supremes to say “This is the way it should be, so this is the way it is!”, condemn them for not doing so, and saying things along the lines of “Let’s get more women in there to rule the way we want.”

    I can respect and respond to people who see the law differently than I do. I have no respect for people who don’t care what the law says.

  47. 48
    Jake Squid says:

    But the law says what the SCOTUS says it says, RonF. They are the ultimate arbiter of law. They can decide in whatever manner they choose, be that analysis & precedent or personal preference. There is no review of SCOTUS, no higher authority.

    We can agree or disagree with SCOTUS rulings but we cannot deny that those rulings are law. We acknowledge that SCOTUS is not objective – never has been, never will be – and, as a result, we all want to see Supreme Court Justices who hold the same values that we do.

  48. 49
    RonF says:

    I understand that Jake. But there’s a difference between wanting to see Supreme Court Justices who see the law the way you do and wanting to see Supreme Court Justices ignore the law altogether and rule the way you want regardless of what the law says. I see a lot of the latter more and more in these cases – people who are not amenable to discussing what the law says. They don’t care what the legal arguments are. They don’t care what the law says. They have no intention of reading the decision and understanding what the basis of the decision was. It doesn’t matter. It doesn’t matter what the Supreme Court’s legal rationale was because the legal rationale doesn’t matter. They’re simply supposed to change the law in accordance with what their critics think is the right thing to do, and if they don’t it’s not “They think this is what the law requires,” it’s “#WarOnWomen”.

    There’s no concept or consideration that the Democratic Congress that passed the laws should be at all accountable. I don’t know whether that’s because Congress doesn’t matter or because that would require criticizing the Democratic Party. I suspect both. It’s all about the Supreme Court and who appointed them. They don’t want to convince Congress to change the law – which Congress can do in these cases – they want to simply pack the Court and bypass Congress altogether. Forget democracy, let’s have an oligarchy that agrees with us.

  49. 50
    Franz says:

    That is literally rule-writing; the Court is tossing out the rules created by the legislature and executive and explicitly replacing them with brand-new rules written by the Court. (Albeit in a temporary order).

    They’re not. The contraception mandate was not created by the legislature, it was created by the executive as a regulation. There’s a question over whether this is lawful under statute created by the legislature, so the court issued an injunction to stay the regulations effect until this can be decided. They’re not making rules, they’re acting as check on extra-legal rule making by the executive.

  50. 51
    Harlequin says:

    They’re simply supposed to change the law in accordance with what their critics think is the right thing to do, and if they don’t it’s not “They think this is what the law requires,” it’s “#WarOnWomen”.

    I feel like, if the justices didn’t want to hear that it was a #WarOnWomen, they could have held that the RFRA forbids the government from making corporations with religious owners provide healthcare at all if it conflicts with their beliefs. Instead we got the mealymouthed version of a “this only applies to contraception, not automatically to real healthcare” disclaimer at the end.

    (I’ll be honest: I still would have found that an outrage. But it wouldn’t be quite so gendered an outrage.)

  51. 52
    RonF says:

    Harlequin, why should the justices rule on the basis of what they want to hear? The issue about the proclamation of “#WarOnWomen” is not what the justices do or do not want to hear, it’s what the people saying it don’t want to hear. They don’t care what the law says and they don’t want to hear the Supreme Court care what the law says.

    As far as outrage goes, do you think the outrage is that the Supreme Court decided as it did, or is it an outrage that the law was written by Congress as it did?

  52. 53
    RonF says:

    LGBT groups dump ENDA after Hobby Lobby

    Several major gay rights groups withdrew support Tuesday for the Employment Non-Discrimination Act that would bolster gay and transgender rights in the workplace, saying they fear that broad religious exemptions included in the current bill might compel private companies to begin citing objections similar to those that prevailed in a U.S. Supreme Court case last week.

    Hm. I think the word “compel” here is an odd usage. Private companies that have no interest in discriminating against homosexuals, etc. wouldn’t have to do a thing. But it is interesting. I wonder now if the House will pick this up and pass it – and if the President would then sign it.

  53. 54
    Harlequin says:

    Harlequin, why should the justices rule on the basis of what they want to hear? The issue about the proclamation of “#WarOnWomen” is not what the justices do or do not want to hear, it’s what the people saying it don’t want to hear. They don’t care what the law says and they don’t want to hear the Supreme Court care what the law says.

    Sorry, bad choice of words on my part; I was attempting to use the “if you don’t want to be accused of X, then don’t actually do X” rhetorical construction, but obviously it was you and not the Supreme Court I was addressing, so it didn’t work so well. I should have said, “Why are you pushing back against people saying a decision is part of a ‘#WarOnWomen’* when the decision specifically and explicitly treats certain kinds of woman-specific health care differently from all other kinds of health care?”

    I find the law more problematic than the decision (or, more specifically, the lack of an exclusion in the law for corporate persons as opposed to humans, although I understand why it wasn’t there originally [because who would have thought of this outcome?]). But I wish the decision had gone a different way (and it’s not so ridiculous to think it could have, as 4/9 of the justices dissented).

    In other news, ENDA is already dead, and has been for a while for this legislative session. I think the fight you’re referencing is about what happens next time it’s brought up, and what happens to the executive order about federal contractors, not about this particular iteration of the bill.

    *I really hate this terminology, btw

  54. 55
    Charles S says:

    In the 200 years of precedent that the RFRA was written to protect, for-profit corporations have never had rights of religious expression. For-profit corporations are not chartered to be religion-having entities. Corporations that are chartered for religious purposes (churches, religious non-profits) do have religious expression rights. The expansive religious expression rights that the RFRA establishes are not recognized by the modern Supreme Court as rights established by the 1st Amendment, so the claim that constitutional rights inherently extend from the owners of closely held corporations to the corporation is irrelevant (also, apparently, false: 5th amendment rights not to self-incriminate are a constitutional right that does not extend to corporate entities).

    It seems to me that the majority of the court actually plays a dubious game of treating the personhood of corporations as less than the law establishes. Hobby Lobby is a person under the law, as you say, but the sort of person it is has never had religious expression rights. The majority decision treats Hobby Lobby as less than a person and substitutes the owners as the people under consideration, and recognizes their religious expression rights as being affected by Hobby Lobby’s actions. But Hobby Lobby does not legally act as its owners, so Hobby Lobby’s actions do not infringe the owner’s religious expression rights.

    Even if we accept that the RFRA grants religious expression rights to for-profit corporations, the RFRA as written also requires the courts to perform a balancing act between religious expression rights and state interests, so it is entirely legitimate to disagree with this case on a public policy basis. One could reasonably see the attenuated religious expression involved in having the corporation you are part owner of not provide insurance that includes coverage for contraceptives you incorrectly believe are abortificants as being comparable to the religious expression involved in, say, substituting a different day of shop closure for mandatory Sunday closure if your religion holds a different day to be a day of rest, a religious expression which the courts have previously found is not protected by the RFRA. Or one could view it as being similar to providing insurance that does not cover blood transfusions, something the court implied it wouldn’t recognize as an RFRA covered religious expression. This court decision strongly implies, with its self-limiting caveats, that it is granting something RFRA coverage that is right at the edge of what it would consider covered by RFRA, so it sensible and legitimate to see the case as wrongly decided because the justices undervalue the importance of getting contraceptive coverage through standard insurance rather than through convoluted work-arounds, or because they undervalue the rights of women.

  55. 56
    RonF says:

    Charles S.:

    RonF, could you clarify whether you agree with the Warren court’s expansive definition of exercise of religion or whether you agree with the first 150 and the last 25 years of SC rulings on exercise of religion?

    Actually, no – because I’m not familiar with the nature of those things and their differences.

  56. 57
    RonF says:

    “Why are you pushing back against people saying a decision is part of a ‘#WarOnWomen’* when the decision specifically and explicitly treats certain kinds of woman-specific health care differently from all other kinds of health care?”

    “#WarOnWomen” seems to me to be a claim that the Supreme Court is specifically attacking women’s rights. But a) as applied to the elective prevention of pregnancy in a healthy woman, birth control is a societal and lifestyle choice, not health care, and b) the Supreme Court can only rule on what’s in front of it – I would presume that if someone brought a similarly-based suit for a societal or lifestyle choice that affected men, they’d rule the same way. You make it sound as though the Court was presented with a group of choices affecting both men and women and specifically picked out the ones affecting women.

  57. 58
    RonF says:

    “Why are you pushing back against people saying a decision is part of a ‘#WarOnWomen’* when the decision specifically and explicitly treats certain kinds of woman-specific health care differently from all other kinds of health care?”

    “#WarOnWomen” seems to me to be a claim that the Supreme Court is specifically attacking women’s rights. But a) as applied to the elective prevention of pregnancy in a healthy woman, birth control is a societal and lifestyle choice, not health care, and b) the Supreme Court can only rule on what’s in front of it – I would presume that if someone brought a similarly-based suit for a societal or lifestyle choice that affected men, they’d rule the same way. You make it sound as though the Court was presented with a group of choices affecting both men and women and specifically picked out the ones affecting women.

    ” I understand why it wasn’t there originally [because who would have thought of this outcome?]).”

    Anyone who read 1 U.S.C. 1 should have thought of it – even if they disagreed with it. There’s a lot of lawyers in Congress, and a lot more that work for Congress. SOMEONE should have figured this out. It didn’t escape the owners of Hobby Lobby, and it didn’t escape the Supreme Court.

  58. 59
    RonF says:

    Even if we accept that the RFRA grants religious expression rights to for-profit corporations, the RFRA as written also requires the courts to perform a balancing act between religious expression rights and state interests, so it is entirely legitimate to disagree with this case on a public policy basis.

    O.K. That I can accept as a reasonable basis for debating this issue.

    One could reasonably see the attenuated religious expression involved in having the corporation you are part owner of not provide insurance that includes coverage for contraceptives you incorrectly believe are abortificants as being comparable to the religious expression involved in, say, substituting a different day of shop closure for mandatory Sunday closure if your religion holds a different day to be a day of rest, a religious expression which the courts have previously found is not protected by the RFRA.

    Hm. Not so much. If one believes that a given drug is an abortificant, then this becomes an issue of life and death. That’s rather different than what day one goes to church. And I’m not a big fan of blue laws (e.g., ‘You have to close on Sunday’) as being particularly Constitutional, anyway. Did that go before the Supreme Court?

    Or one could view it as being similar to providing insurance that does not cover blood transfusions, something the court implied it wouldn’t recognize as an RFRA covered religious expression.

    Here we also have an issue of life or death – but this time it’s withholding the treatment that leads to death, not providing it.

    so it sensible and legitimate to see the case as wrongly decided because the justices undervalue the importance of getting contraceptive coverage through standard insurance

    It’s legitimate to bring the argument. I happen to believe that it’s an erroneous argument, but at least it’s brought in good faith.

    rather than through convoluted work-arounds,

    It’s not a particularly convoluted work-around to pay for your own drugs. And my mail tells me that it’s pretty easy to buy insurance – I’ve gotten hundreds of requests to do just that over the years.

    or because they undervalue the rights of women.

    This issue does not involve the rights of women. Women do not have a right to have a particular drug or procedure covered by employer-related health insurance – and neither do men. The ACA legislation attempted to give the HHS the power to create that as an executively-created privilege, but that’s not the same as a right, and it foundered because Congress had previously established other legislation that countermanded it.

  59. 60
    Harlequin says:

    But a) as applied to the elective prevention of pregnancy in a healthy woman, birth control is a societal and lifestyle choice, not health care,

    But they didn’t say, “You can refuse to pay for a plan supplying birth control qua birth control, and only if the recipient is healthy enough that they could probably have a safe pregnancy.” They said, “You can refuse to pay for a plan supplying birth control.” I’ll be really specific, just so we’re clear: I take artificial hormones (as a cancer preventative) due to a disorder I have; this involved birth control for 5+ years as a teenager, at no point of which I was sexually active. Then I started having bad reactions to artificial hormones. I’m on a specific thing that’s working okay right now, but might not forever, and my doctor wants me to try the hormonal IUD since it’s more localized to where I need it and might not cause the kind of systematic effects I get from the current drugs. I am also, currently, not sexually active. But, according to you, since women might use such a thing as birth control, my employer can claim a religious exemption and refuse to provide health insurance that covers what my doctor thinks is the best option for treating my disorder.

    The fact that birth control methods were originally designed for one purpose doesn’t replace the fact that they’re well-tested, common methods of hormone regulation, replacement or supplementation for women with a wide variety of common health problems. This comes up every time contraception policy is discussed; I’m not sure how you’ve missed it.

    Also, you have completely ignored that even in a healthy woman, pregnancy can turn out to be medically dangerous. AND you have completely ignored that not all women are healthy and might wish to avoid pregnancy for those reasons.

    and b) the Supreme Court can only rule on what’s in front of it – I would presume that if someone brought a similarly-based suit for a societal or lifestyle choice that affected men, they’d rule the same way.

    To quote from the decision:

    This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.

  60. 61
    Ledasmom says:

    If one believes that a given drug is an abortificant, then this becomes an issue of life and death.

    But in this case, at least, this belief conflicts with observable reality. The morning-after pill does not inhibit implantation. Their refusal to cover it makes about as much sense as me refusing to wear my seatbelt because I believe that, if I’m in an accident, I will magically become immune to injury. We should at least recognize a difference between beliefs about things for which there can be no evidence (matters of faith) and beliefs about things for which there is actual evidence that contradicts the belief.
    And I fail to understand why blood transfusions or vaccinations may be too important to lose out to an employer’s religious values, but birth control isn’t. In fact, the analogy between birth control and vaccines is pretty good: one is using something pre-emptively to avoid a condition one doesn’t want. I am tempted to assume that birth control, for whatever reason, just isn’t seen as crucial medical care.

  61. 62
    Harlequin says:

    Actually, sorry, I didn’t go far enough in rejecting your clause A. Since when is the medical prevention (through drugs or devices) of a medical condition (pregnancy) a “lifestyle choice” and not preventative care? The only way I can figure out what you mean is if you think pregnancy isn’t a medical condition, but that seems obviously wrong.

  62. 63
    Harlequin says:

    We should at least recognize a difference between beliefs about things for which there can be no evidence (matters of faith) and beliefs about things for which there is actual evidence that contradicts the belief.

    I disagree here, because I think it’s just too easy to abuse that policy, as well as to decide what’s factually disproven. But it did bring up a question I’ve been pondering: why is science good enough to declare that emergency contraception prevents pregnancy, but not good enough to declare how it does so? I feel like you should believe the researchers or not, rather than picking and choosing among results obtained in the exact same way.

  63. 64
    Ledasmom says:

    Well, I think that if there’s no evidence at all that a drug prevents implantation, nobody should be able to get away with claiming they have a moral objection to it because it prevents implantation. Seriously, would a company get an exemption from laws requiring safety equipment for construction workers because the owners have a belief that, if anyone should fall, they’ll be buoyed up by the hand of God?

  64. 65
    Charles S says:

    RonF,

    It’s not a particularly convoluted work-around to pay for your own drugs. And my mail tells me that it’s pretty easy to buy insurance – I’ve gotten hundreds of requests to do just that over the years.

    Have you even read the decision?
    Paying for your own drugs is not the work-around.

    The court recognized that the government has a legitimate public policy interest in ensuring that employer provided insurance includes contraceptive coverage along with other drug coverage (actually, Kennedy + the dissent agreed on this, but 5 out of 9), and suggested that the existing administrative solution for religious non-profits (submit a form stating that you have a religious objection to providing contraceptive coverage, the government will then order your insurance company [or insurance administrative company if you self-insure] to provide contraceptive coverage to people in your plan, without charging you for the cost of that coverage) was possibly a reasonable least intrusive solution (again, Kennedy’s concurrence, plus presumably the dissenters). In any case, a majority (Kennedy’s concurrence plus the dissent) recognized that the government has a legitimate state interest in ensuring uniform access to contraceptives, but they must find the least intrusive solution. They certainly did not agree with your ridiculous assertion that contraceptive use is merely a “lifestyle choice” (that would be the assertion of the asshole who owns Eden Foods, who is not actually a Supreme Court justice).

    And yes, the solution for religious non-profits as it currently exists is a convoluted work-around.

  65. 66
    Charles S says:

    RonF,

    Actually, no – because I’m not familiar with the nature of those things and their differences.

    Maybe you should gain at least a slight familiarity with how the courts have interpreted the right to religious expression and how that relates to the RFRA before going on at great length about the right to religious expression and the RFRA?

  66. 67
    Charles S says:

    If one believes that a given drug is an abortificant, then this becomes an issue of life and death. That’s rather different than what day one goes to church. And I’m not a big fan of blue laws (e.g., ‘You have to close on Sunday’) as being particularly Constitutional, anyway. Did that go before the Supreme Court?

    The RFRA protects the right to religious expression, not the right to act upon your religious beliefs at the expense of others. Which day you worship on is much more clearly a right of religious expression than the right not to very indirectly have your money go to support something that you incorrectly think is related to abortion, which your religion teaches is bad. Which day you worship on, and which day you don’t work on, is a core tenant and core religious practice of many religions. Not having abortions is not a core religious tenant of any religion I’m aware of.

    Anyway, which day you worship on determines your eternal damnation or salvation, which is more important than life or death.

    And yes, the constitutionality of blue laws has been adjudicated. You can look it up if you like. Your browser (almost certainly) has a nifty little search field up at the corner, and which will help you discover many fascinating things about many subjects.

  67. 68
    gin-and-whiskey says:

    What would be really great would be if could use this opportunity to get rid of, or limit, the RFRA. It’s a bad law in the first place.

  68. 69
    nobody.really says:

    [I]f there’s no evidence at all that a drug prevents implantation, nobody should be able to get away with claiming they have a moral objection to it because it prevents implantation. Seriously, would a company get an exemption from laws requiring safety equipment for construction workers because the owners have a belief that, if anyone should fall, they’ll be buoyed up by the hand of God?

    As far as I’m concerned, religion need not be fact-based. So yes, a person (and now a corporation, I guess) is free to profess a religious objection to safety equipment for construction workers under this or any other theory, or under no theory whatsoever. That said –

    1. Courts may evaluate the credibility of a person’s testimony about his beliefs just as they would evaluate the credibility of any other kind of testimony. The court might reject my Hand-of-God theory ‘cuz I look like I’m lying. Or I might look perfectly sincere – and the court might still reject my claim after they hear the recording of me pleading with the 911 operator to send an ambulance right away because Larry just fell off the crane.

    2. Whether a company could get an exemption from the law under the RFRA would depend on a balancing of the compelling state interest and the religious belief. I’m not aware that this particular fact pattern has been litigated under that statute, so I suspect we’re just left to speculate how the balance would turn out.

    What would be really great would be if could use this opportunity to get rid of, or limit, the RFRA. It’s a bad law in the first place.

    I generally agree – yet I feel this curious urge to discuss student loan debt….

  69. 70
    Ruchama says:

    But they didn’t say, “You can refuse to pay for a plan supplying birth control qua birth control, and only if the recipient is healthy enough that they could probably have a safe pregnancy.” They said, “You can refuse to pay for a plan supplying birth control.”

    Exactly. Birth control has a ton of uses other than preventing pregnancy. I’m on it because, without it, I get a week-long migraine every month. (And no, I don’t mean just a headache. I mean a migraine, where any noise or light leads to extreme pain and nausea, where I can barely get out of bed, let alone go to work.)

  70. 71
    Elusis says:

    as applied to the elective prevention of pregnancy in a healthy woman, birth control is a societal and lifestyle choice, not health care

    You can keep saying it, but that doesn’t make it true.

    I’m curious, for those who think this was a good Court decision:

    What’s the difference between an employer refusing to offer a health care plan that covers birth control because they don’t want to “pay for it,” and an employer refusing to offer a health insurance plan that covers treatment anywhere but at a Catholic hospital because they don’t want to “pay for” a doctor visit where birth control might be prescribed?

    What’s the difference between an employer refusing to offer a health care plan that covers birth control because they don’t want to “pay for it,” and an employer refusing to offer a health insurance plan that covers prescriptions anywhere but at a Catholic-owned pharmacy because they don’t want employees to use their plan to go anywhere that birth control might also be dispensed?

    What’s the difference between an employer refusing to offer a health care plan that covers birth control because they don’t want to “pay for it,” and an employer making employees sign a statement saying that they won’t use any of their wages from that company to pay for birth control at all?

  71. 72
    nobody.really says:

    [A]s applied to the elective prevention of pregnancy in a healthy woman, birth control is a societal and lifestyle choice, not health care….

    You can keep saying it, but that doesn’t make it true.

    More to the point, the ACA was adopted, in part, for the purpose of making the market for health care insurance more efficient – getting more bang for the buck. Within this context, “health care” includes anything covered by health insurance – as well as cost-effect substitutes for those things.

    If you acknowledge that 1) pregnancy and child birth are covered under health insurance, and 2) subsidizing birth control might prove to be a cost-effective way to reduce the number of unwanted pregnancies and child births, then it would be penny-wise and pound-foolish to ignore a strategy to make health insurance cheaper. I’ll admit, as a factual matter, item 2) is not obvious to me. But if the facts pan out, then conceptually (ha ha) birth control should be regarded as “health care” for purposes of the ACA.

  72. 73
    Ruchama says:

    The NY Times looked at some studies that analyzed the cost of mandating contraceptive coverage, and basically came up with “Probably cost-neutral in the long term, but not enough good data to really say.” http://www.nytimes.com/2014/07/10/upshot/does-contraceptive-coverage-pay-for-itself.html?ref=health

  73. 74
    Grace Annam says:

    Meanwhile, trenchant commentary over at Scenes from a Multiverse and hilarity from Matt Bors.

    Grace

  74. 75
    Brian says:

    Came across a video that made me think of this thread fondly. :)

  75. 76
    KellyK says:

    Also, you have completely ignored that even in a healthy woman, pregnancy can turn out to be medically dangerous. AND you have completely ignored that not all women are healthy and might wish to avoid pregnancy for those reasons.

    Exactly! Pregnancy in and of itself is a medical condition. It’s very rarely fatal (though the risk goes up dramatically among poor and/or minority women—the very same group who are more likely than average to have trouble paying for their birth control.)

    But even in cases where it’s low risk, it can be highly unpleasant. My sister-in-law has truly miserable pregnancies—she spends so much time throwing up that she’s needed IV fluids on multiple occasions. This isn’t just normal morning sickness that goes away after the first trimester, but sickness that lasts the whole pregnancy.

    It’s a lot worse than having the flu (unless you’re very young, very elderly, or immune compromised), and yet insurance companies don’t blink at flu vaccines for people who aren’t high risk themselves, aren’t in contact with high-risk populations, and really just want to avoid a week of misery during flu season.

    If “I’d like to take medication so as to avoid puking my guts out for nine months straight” is a “lifestyle choice,” then almost any treatment can be viewed similarly. I mean, I’m not going to die without my SSRI, I’ll just be a walking ball of stress who has occasional panic attacks and is at higher risk for stress-related diseases. And, hey, since I can do some mitigation with yoga and meditation and avoiding stressful situations, those meds must be totally optional, right? (I am really concerned about the effects of this precedent on mental health parity, especially since “pray away the depression” is common in some of the same religious circles as “birth control is murder,” (e.g., fundamentalist and evangelical).)

    For that matter, I’ve done physical therapy for a couple injuries, and there were tons of high school and college athletes among my fellow PT patients. Under the “lifestyle” argument, an insurance company is being totally reasonable to say “No, we’re not paying to fix your ankle so you can go play basketball. That’s recreational. We’ll cover the bare minimum for you to be able to work or go to school.”

    Also, the implication that sex is just recreational seems very weird to me from a Christian point of view, where it’s generally taught to be something sacred. (Yes, within marriage, but more married women than single women use birth control.)

    I mean, heck, Paul taught that each person in a couple has a responsibility to satisfy the other person sexually. If a woman believes that, and happens to work for Hobby Lobby, why is her religious belief less important than theirs?

  76. 77
    KellyK says:

    And I fail to understand why blood transfusions or vaccinations may be too important to lose out to an employer’s religious values, but birth control isn’t. In fact, the analogy between birth control and vaccines is pretty good: one is using something pre-emptively to avoid a condition one doesn’t want. I am tempted to assume that birth control, for whatever reason, just isn’t seen as crucial medical care.

    Because birth control is for women, whose medical needs aren’t important. If we pop out babies til we die, oh, well, that’s what God made us for.

  77. 78
    Fibi says:

    And I fail to understand why blood transfusions or vaccinations may be too important to lose out to an employer’s religious values, but birth control isn’t. In fact, the analogy between birth control and vaccines is pretty good: one is using something pre-emptively to avoid a condition one doesn’t want. I am tempted to assume that birth control, for whatever reason, just isn’t seen as crucial medical care.

    If an employer does object to blood transfusions or vaccinations it is likely that they will lose, but not be because transfusions and vaccinations are “more important.”

    In Hobby Lobby the majority assumed that the government had a compelling interest in “guaranteeing cost-free access to the four challenged contraceptive methods.” Kennedy in his concurrence found that the government had a compelling interest “in the health of female employees,” and the dissenters found that the mandate “furthered compelling interests in public health and women’s well being.”

    In the RFRA there is no sliding scale, no compelling interest “more important” than another. Rather, if the court finds both that there is a substantial burden on a sincere religious belief and that the government has a compelling interest that is at stake the question is whether the government has a less restrictive means of meeting that interest.

    The majority opinion found that the accommodation already established for religious non-profits would create no net-cost for insurance companies. As Ruchama pointed out in comment 73, this may not be true, but the government agreed that it was at oral argument.

    Blood transfusions would clearly create a net-cost for insurance companies. While birth control frequently leads to fewer medical expenses (because pregnancy is expensive), a successful blood transfusion frequently leads to additional medical expenses (because the patient lives). Vaccinations may also have a negative net-cost to a particular insurance company. Much of the benefit of vaccinations accrues through herd immunity, so at current vaccination levels the likelihood of avoiding illness is small (since herd immunity largely protects everyone). Also, the benefit of vaccination accrues to a person throughout his or her life. The illness that is avoided may well have otherwise occurred only after the patient moved on to another insurance company. This could also factor into the analysis. So, the insurance company pays accommodation would almost certainly be rejected for blood transfusions and might well be rejected for vaccinations.

    The only other alternative means raised in the Hobby Lobby litigation was a government pays model (or a variation where the government pays through tax credits). The majority indicated that the government might have to bear some cost before an alternative is deemed to be unavailable but didn’t decide how much, or even give much indication where it would draw the line. So the courts might well find that the cost of the government pays accommodation is prohibitive and this accommodation is not available for either blood transfusions or vaccinations.

    Finally, the courts might distinguish the case by finding that the government’s compelling interest in blood transfusions and vaccination is different than the interest in birth control. With blood transfusions, the government would argue that time is of the essence. If the government’s compelling interest is in saving lives, then any administrative delays created by an accommodation would make the accommodation less effective at meeting the government’s compelling interest than the mandate is. With vaccines the government would argue that their interest is in ensuring the maximum possible vaccination levels in the population due to herd immunity. Which is to say they have an interest not just in “guaranteeing access” to vaccinations for those who want it, but an interest in encouraging (even mandating) that someone who is ambivalent gets vaccinated. If the court believed that administrative delays might require parents to bring their children back to the doctor’s office for another visit in order to be vaccinated, and that some parents would not do so, they could find that any alternative would be less effective than the mandate and decline to require any accommodation.

  78. 79
    Harlequin says:

    In the RFRA there is no sliding scale, no compelling interest “more important” than another.

    But the people making the decisions are still, y’know, people. As much as we’d like to think we’re capable of making perfectly rational decisions, subconscious ideas like what’s important vs not-important health care can affect how receptive we are to certain arguments. While the decision here can be logically justified through legal argument, it’s entirely possible that a different decision would have been reached if the first test case had been vaccines or blood transfusions, even if the other arguments were the same. (That’s true of any subject, of course, but I feel like with contraception/women’s reproductive health in particular, there’s ample precedent to believe that people are strongly affected by their emotional sense of how important it is–and I do include myself there, though I still think I’m right anyway!) It is nice to see everyone putting down in writing that universal access to contraception is a good goal, though, yes.

    Blood transfusions would clearly create a net-cost for insurance companies.

    Fair enough.

    Much of the benefit of vaccinations accrues through herd immunity, so at current vaccination levels the likelihood of avoiding illness is small (since herd immunity largely protects everyone).

    For an individual person this is true. For an insurance company, which may insure thousands or millions of people, less so. If your chance of getting an illness is 1/1000, then the expected number of illnesses for you is nearly 0; the expected number of illnesses for a million people is 1,000. And if an insurance company is covering a significant fraction of the population in a region, then they’re also seeing the benefit of impacting the number of expected illnesses by increasing/maintaining the herd immunity. (See the comment I just made in the open thread.) This also reduces, but doesn’t eliminate, your point about whether insurance companies are saving their own or another company’s money through vaccination.

    With blood transfusions, the government would argue that time is of the essence.

    Has no relevance here. Nobody’s checking your insurance if you need a blood transfusion to save your life; they’re giving you the blood transfusion and worrying about the payment later. And even for the vaccine example, this is worked out when the plan is set up, not when people are trying to access their benefits.

    So, okay. I think it’s reasonable, in the terms under which the decision was made, to say that blood transfusions and other critical-care treatments would never have been excused in this way due to the cost argument. But I think preventative treatments, like vaccines, would still be covered under the arguments presented, and I’m not sure why they’re specifically disclaimed in the decision.

    It’s unlikely, though, that you’d be able to convince me that this decision wasn’t affected by the justices’ opinions on birth control, so perhaps I should stop arguing it!

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