The recent supreme court decision in favor of Hobby Lobby has reignited a national debate. With wide debate and flared tempers, misinformation abounds. Let us clarify a few things here for the sake of keeping things truthful and hopefully civil.
1) Legally speaking, corporations are persons and so they have the general rights and privileges of legal personhood. According to to the Citizens United case of 2010 corporations can be understood legally as persons. The US Code 27 section 7701 compliments this idea saying, “The term ‘person’ shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation.” This point establishes that the general rights of persons extend (as some sort of entitlements, privileges, or freedoms) to people acting in a group context, including businesses. Now, of course, law code is complicated and the full range of freedoms may be applied differently to businesses just as adults have different legal privileges than minors. But the general point remains. People are people even when they are in groups, even when they are working together for a common product. It would be legally questionable and, in some cases, perhaps even immoral, to deny all legal personhood status of people groups, even when they have a common productive cause, as with businesses. For example, this concept of corporate personhood has been used to establish that, just as it is illegal for the government to kill people because they are of a different political party than the current administration, so too is it illegal to destroy a business on the same basis. If it’s illegal for the government to search and seize a private citizens property without a warrant then it is likewise illegal to search and seize a businesses property on the same basis. Regarding Hobby Lobby, this fact allows a lot of room to move for religiously charged businesses since it allows for businesses to have freedom of speech, freedom of conscience, freedom of assembly, and so on. We may admit that every right is somehow “bounded”–having respective limitations. But corporations, businesses and companies, whether Planned Parenthood, Hobby Lobby, or Chick-Fil-A all have their respective freedom of conscience and to the extent that they are not also public (government) institutions they (broadly speaking) retain the same kinds of freedoms that individuals share.
2) Hobby Lobby complied with Obamacare broadly, as it is the law of the land now, but declined to support the inclusion of 4 out of the 20 kinds of birth control entailed therein. Hobby Lobby showed no institutional opposition to birth control broadly but to particular forms of birth control specifically. If Hobby Lobby were taking, for example, a fundamentalist Catholic stance then they might oppose all forms of birth control. But in Hobby Lobby’s specific case, it was a special kind of birth control that piqued their conscience. They approved 16 kinds of birth control but objected to 4 particular kinds that were not merely contraceptives (i.e., contra-conception–preventing conception).
3) Birth control medications are nowhere outlined as an explicit right in our founding documents This point has a trivial sense and a significant sense at play. Obviously, the medical technology in the 18th and 19th centuries was not terribly sophisticated by today’s standards and it would be anachronistic to expect the Declaration of Independent, the Constitution or the Bill of Rights to outline such birth control medications in their civil rights. More to the point, the core rights of life, liberty, pursuit of property, pursuit of happiness, and then the subsequent explications of these in the Bill of Rights do not clearly establish a field for erecting the rather nuanced “right” to birth control medications. We can grant, at least for the sake of argument, that legal history admits a “right of privacy” (see also, “What’s Left of My body, My Right”). But even that principle is an implication established in court precedent and not strictly in our founding documents. Moreover, as seen below, it is not clear that corporate sponsored, government mandated, free birth control medications are strictly entailed in that rather abstract “right of privacy.” Much less would it be a strict entailment of the rights of “life, liberty, and the pursuit of happiness.”
4) Birth Control medications are currently available already. People who want birth control medications can get birth control medications already. This point seems obvious, but it points out a sense of entitlement that might be fueling this debate. If someone understands free birth control as a right, then his or her offense over Hobby Lobby might be justified. If someone understands paid birth control as sufficient to satisfy that entitlement, then it would not be justified to take offense at Hobby Lobby’s legal position in this case. Of course, even this characterization is simplified. Nothing is free, even if Hobby Lobby conceded their case, the birth control would not be “free” since someone (else) has to pay for it, and the insurance plan would still likely involve insurance premiums and copay and deductible. But the core of this point is unphased; one can still have broadly equal access to contraception without having that access through corporate subsidized government mandated insurance packages.
5) Hobby Lobby employees have always had the individual freedom to purchase whatever birth control means they can legally acquire. Building on the last point, Hobby Lobby was not prohibiting women from purchasing their own birth control. Hobby Lobby was refusing to materially support inclusion of particular birth control options in their corporation’s private benefits package. Meanwhile employees could stay employed, keep all their benefits, and remain in good standing with the company even if they were to purchase those “offensive” forms of birth control. The issue does not seem to be simply about “birth control” but rather about a particular methodology for accessing a particular kind of birth control.
6) There has been no court precedent yet establishing that employers must provide healthcare for their employees. It is not an established right to have employer-provided insurance plans covering all or most FDA approved forms of birth control. Those entitlements are instead part of a mandate initiated by a partisan vote in 2010, the Affordable Care Act (or, ACA, or Obamacare). That healthcare mandate just barely survived a prior supreme court ruling (5-4 vote) where it’s constitutionality was challenged. The saving grace for it regarded the federal government’s right to tax the citizenry, and so those who paid the “fee” or “penalty” for opting out of the mandate were technically paying a tax in lieu of paying for their own insurance plan. Previously that “opt-out” fine was called a “fee” or “penalty” because of the negative connotations of calling it a “tax.” The ACA has been hotly disputed, very partisan, and even a campaign liability for its supporters ever since it was enacted. Needless to say, a great many Americans question whether the the ACA is legitimate in the first place, and Hobby Lobby has been a test case for one of its (supposedly) most intrusive elements. It was not a court ruling, or a constitutional amendment, or a right in the Bill of Rights, which established that employers must provide healthcare for their employees, much less that that healthcare should include contraceptives, much less that that healthcare should include most of the FDA approved contraceptives, much less that some of those would also be abortifacients (supposedly), much less that that healthcare should intrude upon and trump a person’s freedom of conscience and or freedom of religion.
7) The particular contraceptives at issue were (they claim) abortifacients. If Hobby Lobby conceded to 16 out of 20 types of contraception. So what was wrong with those last 4? The representatives of Hobby Lobby believe those to be abortificients, that is, abortion-causing drugs. These four are (1) Copper and (2) Hormonal Intrauterine devices (IUD’s), (3) Levonelle (“Ella”/”Week-after-pill”), and (4) Plan B (the “morning-after-pill”).* Now whether these are “abortifacients” depends, in part, on the definition of pregnancy and the definition of abortion. Some have attempted to define pregnancy as beginning only at or after implantation. And by that definition IUD’s and “morning after” pills and “week-after” pills would not qualify as abortificients since, besides undermining conception, they prevent implantation and thus prevent pregnancy. But in the event of conception, which sometimes happens, there is a human being inside of the women; her biological child-in-utero, hence she is now a mother. It seems terminologically confusing, and conceptually contrived, for a mother to be with child and yet not be pregnant. In that way, Hobby Lobby has a biological and medical case. And apparently, the recent decision shows they had a persuasive legal case too.
8) One can be pro-choice and still disagree with a particular or coercive means of birth-control access, or pro-life and agree with that means. The Hobby Lobby case has proven politically and ethically divisive already. But, it should not be treated simplistically as if all pro-choice advocates are pro-obamacare and think little of corporate personhood or religious freedoms. Nor should one lump all pro-life perspectives in with anti-obamacare Christian conservative camps. A libertarian, for example, may affirm a broad right of access for people so that they can do what they want with their bodies, but he or she likewise may affirm that no business or outside party should be forced to pay for your healthcare and especially not something so private and personal as your intrauterine devices or morning after pills. The Green family, owners and founders of Hobby Lobby, may be conservative evangelicals but they may have ideological agreement with liberals or non-Christians who appreciate their conflicted position.
9) Some of the birth-control measures in question are not normally used to regulate menstrual cycles or balance one’s hormones. It has been argued that contraceptives are often used for non-contraceptive medical purposes so the Hobby Lobby case obstructs access to a more general sense of healthcare–where pregnancy and children are not at issue. Given the previous points, this argument falters. Copper-IUD’s are not normally used to treat hormonal and menstrual irregularities, cramping, bleeding, etc. Copper-IUD’s are not hormonal treatments like that, in fact, they are known to (sometimes) worsen the side effects of one’s menstrual cycle. Likewise, the morning after pill (Plan B) and the week-after pill (Ella) are occasional medications, not regular medications. They are to be taken after intercourse, hence they are not designed for regulating one’s menstrual cycle but instead for effecting the woman’s body temporarily to prevent either conception/fertilization or implantation. The hormonal IUD (Mirena**) can be used to regulate menstrual symptoms. Meanwhile, the 16 other types of contraceptive care were no objection to Hobby Lobby, and among those are several options for the non-contraceptive benefits that some women need. The issue remains that some ethically distinct forms of birth-control were lumped together with purported abortifacients, thus pitting competing interests against each other and generating an unnecessary ethical dilemma.
10) Hobby Lobby can support women’s interests, women’s healthcare, and the well-being of women even as they oppose abortion. To pro-life camps, it seems very duplicitous to call abortion “healthcare”, even when it’s early stage abortions. It should be noted that one may identify cases of rape or cases of high-risk pregnancy as ethically distinct from other kinds of abortion. Even pro-lifers have differing views on those special cases. Regarding other cases, sometimes termed “abortions of convenience” it is not nearly as clear that these are healthcare in any normal sense. Pregnancy care would be a safe sense of “healthcare.” Neo-natal and maternity care would be a safe sense of “healthcare.” But there is ideological conflict, perhaps a contradiction, when the medical field overlaps with the intentional killing of human beings, as is the case with abortions of convenience. Hobby Lobby has an ethical case for treating abortion (of convenience) as harmful or at least as a non-healthcare issue. In this way people who advocate for women’s health can still object to the selective abortion of any child for any reason so long as they are still in the womb (and in the 1st or 2nd trimester). In this vein, it is not necessarily “oppressive” to women to affirm a mother’s duty to care for, and not kill, her child, even if it is in utero. Experts may disagree over some details, but there’s at least some principled distinction between preventing pregnancy and ending pregnancy. One kind takes a life the other prevents it. One is a kind of killing the other kind is not; one is abortion the other is contraception (properly speaking). When contraceptives are used for non-contraceptive purposes, that may be distinguished ethically from strictly abortifacient uses. According to Hobby Lobby’s legal case, they can support women’s health including non-abortive medicine to treat things like menstrual irregularities or similar problems.
11) Freedom of Religion is a serious and well-established right, far more basic than that of any abortion access. Admitting that abortion access is currently part of the “law of the land,” the freedom of religion is even more basic, having deeper roots (1st amendment of the bill of rights) an older precedent (1791), and has been long used as a cornerstone in jurisprudence, even defining a great deal of what it means to be the constitutional democratic republic that is the United States of America. Without exaggeration it may be argued that the freedom of religion is the most sophisticated and hardest fought natural right among the panoply of natural, civil, and human rights. As a right, it entails several other rights including freedom of conscience, freedom of speech, freedom of assembly, freedom of petition, and freedom of the press. And only in extreme cases, or certain private matters, is religious discrimination tolerated in society. That context in place, mainline religions are bound to have ideological conflict with contemporary culture. At the least, it may be said that so long as a religion’s particular conscientious objection is clearly principled, well-established as normal, natural, or necessary to their religious ideals, and not trivial, individual, novel, or nominal then that conscientious objection should be legally respected as far as is practically possible.
This is not “new” territory by any means. So many “gray areas” in this right have been well-tested across a long case history. One cannot just invent a religion, create a trivial or nominal “sacred” practice that is otherwise illegal and then claim “religious freedom” protects that practice. This domain is still quite gray as can be seen with political forms of Islam (sometimes associated with ‘radical Islam’ or “Islamism’). But regarding the Hobby Lobby case, and its problem with abortion, this is no shallow objection. This is a deeply principled issue overlapping (potentially) with natural law (society has taboos on killing people), civil law (murder is illegal”) and religious ethics (“Thou shall not murder”). The issue in view here is, in some ways, opposite of, say, the Jehovah’s Witnesses and their taboo on blood transfusions or faith healers who reject modern medicine. Those religious views clearly and demonstrably threaten to kill human beings; meanwhile Hobby Lobby is fighting to NOT be required to help kill human beings. They are not fighting TO BE ALLOWED to kill infidels, or TO BE ALLOWED to force people to convert to their religion, or even TO BE ALLOWED force marriages, circumcise young girls, or engage in polygamy. All of those already have deep legal precedents and no clear room in U.S. law. But before 2010 there was no legal mandate that businesses help their employees pay for abortifacients. It is not the religious objection but the coercive mandate that seems novel, trivial, and nominal. Even tracing the ACA mandate back to abortion-specific policies that would only take the case history back to about 1973. Meanwhile, the ethical and legal history banning murder, and all it’s affiliates–conspiracy, malicious intent, malice aforethought, accidental manslaughter, negligent homicide, etc. can find much deeper legal precedent. The ethical identification of abortion as murder has been sounded ever since Roe v. Wade has passed and, ethically speaking, those folks have a case, even if legally speaking it’s no longer considered murder (i.e., in the legal sense murder is unlawful killing).
Restated, the freedom of religion issue for Hobby Lobby regards a novel government mandate demanding that they not just offer insurance benefits to their full-time employees, not just offer insurance with contraceptive coverage, not just offer insurance with 16 kinds of contraceptive coverage, but also that they include 4 other kinds of contraceptions that are believed to be abortifacients, killing little human beings in their most defenseless state. One cannot say that the ethical conviction against killing is a triviality, or it’s uniquely religious, or some “trumped” up objection. Objections to killing can be religious, and with Hobby Lobby, they were religious. But they are not necessarily religious nor would they have to be strictly religious. There is a well-established natural law standard that killing human beings is generally wrong. It may be a “necessary evil” in times of war, self-defense or even with capital punishment, but those only illustrate just how ethically compromised a situation must be before killing is better than the alternatives. In the case of abortifacients, Hobby Lobby has a conscientious objection against abortion and it also happens to be a religious objection. Infringing on Hobby Lobby’s freedom of religion is no small matter and should not be done when so many other options are available for their female employees.
12) Hobby Lobby could have paid a fine instead, but that would still comply with and sponsor the Affordable Care mandate which included abortifacients. According to reports, the Supreme Court Justices who most antagonized the prosecution pointed out how Hobby Lobby could have simply paid a fine for each instance where they refused to adopt the particular insurance requirements for their employees. And if those fines were multiplied across all their employees it would still be less expensive then the per-day fines they were paying for refusing the Affordable Care act entire. While this argument works financially, it does not work ethically–if one refuses to direct and financially sponsor mandated access to abortifacients. Hobby Lobby held the principled ground that they should not have been required to offer such access on pain of monetary penalty. To be forced to compromise one’s religious convictions for the sake of a government mandate pits rights against rights, governmental power against constitutional principles. No such conflict is necessary, and so, Hobby Lobby should not be pitted between their God or their government. It would be wrong and unethical to fine people for holding to their religion, and that is what those particular Supreme Court justices were essentially arguing.
13) There were numerous other options available for female employees of Hobby Lobby If a female Hobby Lobby employee wants contraceptive access, she has a bevy of options in front of her that would respect Hobby Lobby’s freedom of conscience and freedom of religion. She can pay for her own contraceptives. She can pay for her own abortion. She can get pregnant and have a baby and raise it. She can do the same and give it up for adoption. She could use any of the 16 other contraceptives that would be been covered. She could have a friend or family member pay for her contraception. She could get a second job with relevant insurance benefits. She could leave this job and take one elsewhere with relevant benefits. She could practice safe sex in other ways. She could join a healthcare consortium bypassing the insurance world. And if all she needs here is to prevent pregnancy, she can, of course, be abstinent.
Given these facts about the case and its surrounding context. It is clear that Hobby Lobby was perfectly within their ethical and legal rights to object to the four abortifacient forms of contraception currently entailed in mandates within the Affordable Care Act (Obamacare). With the many alternatives available to women, there is no clear need to infringe on the religious rights of the Green family and their business Hobby Lobby.
*There is some medical dispute over whether and how much the various contraceptive medications and devices have an additional abortifacient effect (for the affirmative see here, for the negative see here). There are currently three types of Intra-uterine devices on the market: the copper-IUD called Paragard, and the Hormonal IUD’s Mirena, and introduced in 2013, Skyla. The hormonal IUD’s can be used to regulate discomfort or complications related to one’s menstrual cycle. But, as with Copper-IUD’s, Ella, and the Morning After pill, they are designed primarily to prevent conception but, in the event of conception, they are also thought to affect the lining of the uterine walls thus inducing an early abortion by preventing implantation in the uterus and subsequent gestation.
** Skyla, another type of IUD, was not released till later, in 2013, and would not have been among the approved medications in the original ACA mandate, and would not have been addressed in the Hobby Lobby case.