Why the Hobby Lobby decision was wrong

On June 30, 2014 the Supreme Court of the United States ruled, “As applied to closely held corporations, the regulations promulgated by the Department of Health and Human Services requiring employers to provide their female employees with no-cost access to contraception violate the Religious Freedom Restoration Act.” With this ruling, the conservative majority of the Supreme Court handed Hobby Lobby a victory in a 5-4 split decision.

In effect, this ruling says that for profit corporations can be exempted from the mandate that they provide certain kinds of contraceptive coverage to employees – including IUDs and Plan B – under the 1993 Religious Freedom Restoration Act, also known as RFRA (pronounced “riff-ruh”).

Due to the number of worrisome legal and social ramifications of this decision, I do not agree with this ruling. There are many aspects of this decision that could lead us down a dark and twisted path.

Legally Speaking

So, corporations are people now?

In coming to this decision, the Court, for the first time, interpreted the word “persons” as used in RFRA to include for profit “corporations,” based on a questionable interpretation of the Dictionary Act of 1871. In the U.S. common law system, all judges have the autonomy to decide which laws and precedents to use and how to interpret them for any given case. I argue that this specific use and interpretation of the Dictionary Act by the Supreme Court was an abuse of power by the conservative justices to advance their political views. Numerous other courts dealing with this same issue relied on other, more practical, sources of law. For example, the Sixth Circuit Court found that it was not the intent of Congress to include for-profit corporations as “persons” under RFRA and thus did not rule in a similar manner. After an optimistic season of Supreme Court decisions, this decision, split along ideological lines, tarnished the cooperative reputation of the current bench and Chief Justice Roberts.

To defend their questionable interpretation of corporations as people, the conservative majority made an effort to ostensibly narrow their ruling. It was decided that the Hobby Lobby decision would apply only to “closely held corporations.” As defined by the IRS, a closely held corporation has more than 50% of the value of its outstanding stock owned by 5 or fewer individuals. In reality, however, this “limited” application of the ruling is not very limited. In the United States, closely held corporations, make up the majority of corporations and recent studies report that over 52% of the American workforce is employed by closely held corporations meaning, theoretically, the Hobby Lobby ruling could affect over half of Americans.

This portion of the conservative majority’s reasoning is what is known as a wedge decision. Although originally a narrow ruling, this decision has the potential to allow for broader interpretations of corporations as people in any other law where the word “person” is written. Using this definition, the entire U.S. Constitution could be read and understood in a dangerous way.

So what does Adam Sandler have to do with all of this?

With this ruling, the Supreme Court immediately allowed companies to opt out of the contraception portion of the healthcare mandate without putting a system in place to verify and regulate the religious claims of the companies choosing to opt out. Like in the movie I Now Pronounce You Chuck and Larry, it is likely that some will attempt to abuse the system in order to reap benefits, financial or otherwise. But, unlike the movie, there exists no quirky fraud inspector who will work to determine the legitimacy of the religious claims.

Due to a lack of regulation, a false religious exemption claim will ultimately damage and undermine the merits of filing for religious exemption. Leaving us without a system in place, even temporarily, is very irresponsible and potentially damaging.

I now pronounce you dead and buried?

Thirdly, although the Court’s ruling is limited to only certain kinds of contraception, such as Plan B and IUD’s, it could again act as a wedge, allowing for future decisions around this Obamacare mandate to be expanded. In the future, other forms of contraceptives and even other forms of health care that violate beliefs of religious peoples could be exempted as well. Jehovah’s Witnesses do not belief in blood transfusions, the Catholic Church’s official stance does not allow for any forms of contraceptives, and other lifesaving medical procedures might be deemed wrong by peoples of various religions.

Further, one of the foundational arguments in the Hobby Lobby case was Hobby Lobby’s belief that forms of contraceptives such as Plan B and IUD’s are abortive. Hobby Lobby said they wanted to play no role in enabling abortions and, with this ruling, the Court told them that they don’t have to.

This aspect of the case, however, is highly criticized. Hobby Lobby’s claim that these forms of contraceptives are abortive was never questioned throughout the case, was never argued against, and was never scientifically proven or disproven, but was instead taken at face value for what Hobby Lobby believed. Most would claim that these types of birth control are not abortive because they prevent implantation of the fertilized egg from attaching to the uterus, preventing the fertilized egg from growing.  The moral and ethical lines drawn for abortion and stages of pregnancy have always been unclear and disputed, but Hobby Lobby’s belief and claim was never disputed in the case. The question is, if people of a religion claim a belief that you believe or know to not be true, should their belief be enough for them to opt out of a government mandate? I will leave this question unanswered for you to decide.

Social Implications

So now contraceptives aren’t health care?

The fact that this exemption will only apply to contraceptives moves contraceptives out of the realm of health care and into a unique realm where the birth control is no longer considered a basic necessity, but rather an ideological issue. This separation of health care and contraceptives is a huge blow to women’s rights and gender equality.

The dawn of accessible contraceptives in the twentieth century gave women the ability to plan their adult lives for the first time in history. With contraceptives, women could choose when to have children and could more easily pursue careers, allowing them much more freedom in their lives and leveling the playing field for men and women. Without contraceptives as an aid, the women’s equality movement would not have been as successful as it was. Still today, gender equality is not perfect, but contraceptives continue to play a vital role in reaching gender equality.

Further, women often choose to take contraceptives for health reasons beyond birth control. Contraceptives help with painful menstruation, acne, ovarian cists, irregular and painful periods, endometriosis, and may even prevent certain types of cancer. Additionally, many medical conditions or lifestyles limit the use of certain forms of contraceptives. Some diabetic women cannot use hormonal contraceptives but can use non-hormonal IUD’s and many women who do not have easy access to the monthly pill packs would benefit from longer-term forms of contraceptives. Choosing to use any form of contraceptive for medical reasons alleviates women of many painful symptoms and conditions and allows them to live happier and healthier lives.

Today, contraceptives should not viewed as a contentious issue, but instead be considered an essential part of health care for those who choose to use them for one of their many benefits. In a law that mandates access to health care for all, contraceptives should not be put in a different bucket than all other forms of health care.

Now my religious freedom is more important than your rights?

In an interview following this Supreme Court decision, Justice Ruth Bader Ginsburg said that she had “never seen the free exercise of religion clause interpreted in such a way” and that “no employer … should be able to transfer that employer’s religious belief onto people who do not share it.” I agree with Ginsburg and am troubled by this decision because, in effect, this decision says that the religious beliefs of a corporation such as Hobby Lobby are more important than the beliefs held by their employees who receive healthcare coverage from them.

Religious freedom is, and should be, a two way street. One person’s religious freedoms are equally as important as the beliefs of another person and one set of beliefs should not impose on another. The government and the judiciary have the responsibility to override the religious beliefs and freedoms of a group when they would impose great burden on other citizens or would interfere greatly with the law. Determining when burden or interference is small enough to allow for religious freedom is a murky business, and thankfully we have previous cases to use as reference.

In the 1972 case Wisconsin v. Yoder, the Supreme Court ruled that Amish children could not be placed in compulsory education after eighth grade because the religious beliefs of the Amish families in question found higher education to be unnecessary and endangering to their salvation. Ultimately, the families’ right to religious freedom outweighed the state’s interest in educating its population. In this case, it was determined that the religious beliefs of the Amish families’ did not make a significant imposition in the lives of others.

In the 1982 case Moshe Menora v. Illinois High School Association, the courts ruled that although a rule of the Association “forbids basketball players to wear hats or other headwear, with the sole exception of a headband no wider than two inches, while playing,” orthodox Jewish males could wear yarmulkes fastened to the hair with bobby pins while playing basketball. It was ruled that “the hazards posed by yarmulkes are too slight” to justify forcing high school boys to choose between playing basketball and following their religion and that the rule therefore “as applied to prohibit the wearing of yarmulkes while playing basketball, violates the free-exercise clause of the First Amendment.”

In both of these cases, the religious beliefs of one person or group were permitted because it was determined that the beliefs do not interfere extensively with the lives of others. In the Hobby Lobby ruling, however, this is not the case. The ruling affects the lives of employees receiving coverage in a dramatic way. It is very clear that limiting citizens’ access to health care is a great burden on many people and interferes greatly with the lives of many.

In looking out for the religious freedom of Hobby Lobby, the five conservative justices on the Supreme Court have essentially overridden the freedoms and rights of all who are no longer able to get the contraceptives that they need and desire. Zechariah Chafee, a judicial philosopher once said, “The right to swing my fist ends where the other man’s nose begins.” It appears that the conservative justices felt that a battered and bloody nose is something many Americans should have to deal with.

Two Notre Dame employees walk in to a hospital.

A recent MSNBC article titled “This is the next Hobby Lobby” discussed the University of Notre Dame healthcare system. This article detailed the coverage and process required for two female Notre Dame employees to receive IUD contraceptives.

At the university, Notre Dame’s employee health insurance will not cover the cost of an IUD insertion procedure and the Notre Dame health providers and doctors will not perform the procedure to insert the IUD device, due to the fact that the university strictly adheres to its Catholic beliefs. One of the women featured in this article was able to obtain an IUD by going to another hospital and using coverage from her parents’ health insurance plan that she still uses. The other employee went off campus to obtain an IUD as well, but because she was on the University’s healthcare plan as an employee, her IUD procedure would not be covered and she would have to pay over a thousand dollars out of pocket, which she could not afford.

There are two issues at hand here: 1) the fact that the employee healthcare plan does not cover procedures that the employing institution does not believe in and 2) the fact that the institution will not perform certain procedures it does not believe in.

On the first issue, which is the same issue as in the Hobby Lobby case, my stance is very clear. Regardless of the beliefs of an institution, they should not be able to deny any form of healthcare coverage to their employees. With full coverage, a Notre Dame employee could go to a different healthcare provider to obtain, for example, an IUD. This does not force an institution like Notre Dame to complete any procedures that go against their beliefs, but still allows employees of the institution to follow their own beliefs and have proper coverage.

The second issue, however, I struggle with a bit more.

In the case of emergency procedures, laws on this matter already exist.  The Emergency Medical Treatment and Active Labor Act (EMTALA) passed in 1986 requires any hospital that accepts federal funding (which is nearly every hospital) “to treat anyone who arrives in need of emergency care.  This includes emergency abortion, if a woman is suffering from pre-eclampsia or other life-threatening complications that can only be treated by ending the pregnancy.”

This law forces hospitals to treat patients regardless of race, religion, or previous conditions, and also forces hospitals to complete emergency abortions, regardless of a hospital’s or doctor’s beliefs. In the case of emergencies, I agree that no person requiring emergency care should be turned away and that no pregnant woman in a state of emergency who requests an abortion should die because their doctor refuses to perform one.

In the case of elective or preventative procedures, I have not been able to form a strong and clear stance. I do not know if it is right to force a doctor or an institution to perform procedures that go against their beliefs when there is no emergency at hand.

On one side of the issue, I do see it as morally wrong to force doctors to perform abortions, IUD insertions, or other procedures that they do not believe in. If a doctor or hospital will refuse to perform an elective procedure, it is usually not a large burden for a patient to seek out another healthcare provider that will.

However, on the other side of the issue, I do wonder to what extent healthcare should be determined by the doctor and to what extent it should be determined by the patient. If a patient goes to a public hospital that accepts federal funding and requests a procedure, should their doctor have a right to refuse to perform it if they do not agree with it? I do not know if they should. In some cases, finding another healthcare provider to complete the procedure is a large burden on the patient and it may prevent them from getting it done at all.

Regardless of my stance on the issue of elective procedures, this Notre Dame case study shows the real and damaging effects of denying employees certain forms of contraceptives and also shows the ambiguity that surrounds issues of matters surrounding contraceptives, abortions, and health care.

Even amidst this ambiguity, however, the Court chose a side and made an important decision through their Hobby Lobby ruling. I only hope that in the future the Court sets aside their personal ideological beliefs and instead considers all of the legal and social ramifications of any given decision. Through what I have presented here, it is clear that if the Court had truly decided based on constitutionality, law, and the current political and social landscape, they would have come to a different conclusion.

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