I spent all day yesterday thinking about the SCOTUS decision allowing Hobby Lobby to dodge the mandate for contraception coverage under Obamacare, due to the supposed religious objections of the Green family. Rather than argue with people on message boards and FB posts today, I decided to hold my fire, chew it over, and lay out an outline of my thoughts on the case and the ruling, and why it’s so wrong. I'm not a Constitutional lawyer, or any other kind, so take it for what it is.
Read on . . .
1. First off –and I can’t say this enough – companies do not “give you” health insurance. You buy health insurance through your company. The company contracts with providers, but the premium is paid through (A) your contribution, usually withheld from your paycheck, and (B) the employer contribution, which – despite the name – is legally regarded as the employee’s compensation (i.e., her money). Employer contribution is even going to be shown on your W-2 going forward, though it’s still tax-exempt. The Greens’ beliefs should not govern how an employee spends his or her own paycheck - even if it’s through a payroll deduction, even if it’s untaxed.
For that matter, there’s not necessarily an extra cost for this coverage in the first place – in many cases, the policies with coverage are the default, or are cheaper than ones without it, simply because contraception is cheaper for the insurer than the things women take it to prevent – like anemia, endometriosis, severe PMS symptoms and, of course, pregnancy.
2. But leaving that aside, and saying (wrongly) that the mandate means Hobby Lobby is forced to “give” contraception coverage to its employees, and that this actually does present an extra cost (unlikely). We still do not exempt people from laws over their religious beliefs. Polygamists don’t get to legally marry 15 wives. The slimy nut-bags in Christian Identity don’t get to ignore anti-discrimination laws. The big precedent here was written by . . . Antonin Scalia himself, in a 1990 case called Employment Division v. Smith. The case revolved around two men who were fired from their job and ultimately denied unemployment insurance after it was learned they had used peyote as part of their religious practice. Scalia’s ruling noted:
“Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”Of course, Scalia twisting himself into a pretzel to rule according to his ideology isn’t new – it’s his consistent MO on the bench – but I really expected at least five of the justices on the bench to embrace what is really a pretty bedrock, common-sense principle of law.
3. Even if we did let people violate laws according to their religious ideals, what was at stake in this case wasn’t religious belief, but a moral one. See, a religious mandate is actually spelled out in your religion – case in point, kosher dietary restrictions in Judaism – and that’s not the case with the Green family’s objection to birth control. There is no Biblical injunction against hormonal birth control, or any other kind (no actual injunction against abortion either, for that matter, but that’s irrelevant here). What the Greens have is a moral belief derived from their religious beliefs, and granting exemptions on that basis is even more problematic (“my gods don’t require that I coke up on the weekends, but I’m pretty sure they’re in favour of it”). It would – to quote the 1990 version of Scalia again – “permit every citizen to become a law unto himself.”
4. Oh, and that belief is a lot of nonsense to start with. The Greens’ objection is based on the idea that certain contraceptives cause an abortion. They don’t. Pregnancy is a word with a precise, medical definition, as are “abortion”, “fertilization”, and “contraceptive”. The Greens are subscribing to a fringe ideology that basically makes up new definitions for familiar words so they can claim the law violates their beliefs, because without that kind of make-believe, they would have nothing to be upset over. Well, sorry for them, but words have meanings. I can’t keep a giraffe in my backyard by claiming it’s a greyhound.
5. It’s also a little hard to believe the Greens are outraged over contraception coverage when they’ve built a company that makes its profits by buying tons of cheap consumer goods from the forced-abortion capital of the world, and which invests its 401(k) plan in companies that produce contraception (including the kinds they don’t like) and products related to actual, genuine, didn’t-make-up-my-own-definition abortion. What would Jesus do, indeed.
6. And none of this should have mattered anyway, because Hobby Lobby is not the Greens, and vice versa. Corporations, whether they’re owned by a thousand people or two, are completely separate legal entities from their owners. That supposed wall between the two is a central point of corporate personhood. It’s why owners aren’t directly liable for a corporation’s debts, crimes, or other liabilities. To say that the owners’ beliefs should be allowed to filter into the corporation to such a degree that it can disregard laws puts a small – yet fundamental – crack in what was supposed to be a solid wall. Side note: when the Court was deciding the Citizens United case, there were tons of amicus briefs from other companies arguing in favor of a pro-corporate ruling, because they all saw the benefit of being able to funnel endless dark money into politics. On this case, not a one came forward, because they all saw the implications of putting even a hairline fracture in corporate personhood.
7. And because five justices ignored those all those points, they’ve unleashed a ruling so ultimately dangerous they tried to do one of those “this ruling only counts for this narrow case” statements. This is bullshit on two points:
A. There’s no legal theory supporting it. Once you rule that a collection of craft stores can become sentient and have religious beliefs, and that it should therefore get to ignore a contraception mandate on religious grounds, there’s no easy legal argument for denying that same sort of exemption to another closely-held company that doesn’t want to cover transfusions, or antidepressants – or, for that matter, that wants to ignore anti-discrimination or sexual harassment laws. What bit of legal reasoning provides a sharp dividing line between the Hobby Lobby case and those other scenarios? Well, since the Court resorted to the “because we say so” argument, you can bet there really isn’t one – we’re just waiting for the right plaintiff to come forward and create the shitstorm that Justice Ginsburg – apparently alone – foresaw yesterday.
B. There is nothing narrow about this ruling to begin with. Calling a decision narrow because it “only affects women’s health coverage” is as condescending, idiotic and outright misogynistic a statement as I’ve heard the Court make in my lifetime. About 62% of the women who are currently on Mother Nature’s gift list are taking some kind of birth control right now – many of them for reasons that have nothing to do with avoiding pregnancy, and a whopping 99% of them will at some point in their lives. That’s 62 million women currently in their reproductive years, and of course 100% of women (half the fucking population) who were or will be – by what screwball definition is that “narrow”? That’s like calling sexual assault a “niche” crime, because, you know, it mostly just happens to chicks.
8. And, on a side note, the GOP is full of misogynistic assclowns. No, seriously. In case you’ve missed the offensive, ridiculously ill-informed comments a lot of conservative men have been making on the subject of contraception ever since Rush called Sandra Fluke a slut for assuming that the insurance she was buying through her university should give her the option of the same contraception coverage as the faculty of that university had on their health plans, trust me – it’s been a tidal wave of Neanderthals crapping out their mouths. And today, hopped up on sweet, sweet victory over women and their scary girly-parts, they couldn’t help icing that cake. Here’s just a couple of gems:
“It was a tough choice today. Celebrate Hobby Lobby by going to Chick-Fil-A or making my wife make me a sandwich. #CFAFTWThat’s just the tweets. You don’t want to know what talk radio, the blogs, the editorial columns and the message boards in echo chambers like Free Republic are saying about this issue. You don’t. You really don’t.
— @EWErickson” (Erick Erickson, conservative blogger and editor-in-chief of the site RedState.com and a FUCKING CNN CONTRIBUTOR)
"Against women?" No, more like "against freeloading bitches." #LiberalLogic
“Ohmydeargawd, women might have to go to Target for birth control. #MiddleAges - @NolteNC (conservative blog Breitbart.com contributor John Nolte)
“Somebody get eyeballs on Sandra Fluke. She may do something dumb. After all now she has to pay for her own birth control.” - @ericbolling (Fox News host)
So the final verdict? This decision sucked. And it’s going to have long-term repercussions so suck we can’t even imagine them all yet. And it’s just another example of how terrible an appointment Roberts was to the High Court.
I wake up today with only one consolation - that things like this build backlash, and backlash makes change.