Some thoughts on Hobby Lobby decision

For this entry I decided to wade into a little more controversy than I have in the past, but thought it was worthwhile to explore some of the issues that have arisen because of this Supreme Court decision. I have had a chance to read a few articles from all sides of this issue, and I think my strategy will be to wait a day or two to see if I can have a more sober analysis. I will admit that my initial reaction has tempered a little since I have had the chance to dig in a little bit more to what exactly was decided. I will say though, that the long-term ramifications could be much larger than people realize, and probably not in the way that people that initially liked this ruling may agree with.

For those that follow this will know that the Supreme Court ruled that Hobby Lobby does not need to provide some of the forms of contraception that were mandated by the Affordable Care Act (Obamacare) for employer provided health plans. This was based on an interpretation of the Religious Freedom Restoration Act (passed 97-3 in the Senate) holding that corporations will have the same rights as individuals and that they do not have to “engage in conduct that violates their sincere religious belief that life begins at conception.”

As mentioned, the scope of this case involves not all contraception, but three specific types (out of 20 total that are part of the mandate). As someone who has a wife in the medical profession, I know more about contraception than perhaps I should. Those covered in this ruling are the morning after pill and two types of IUDs. My understanding is that the morning after pill and one of the IUDs work by preventing a fertilized egg from implanting in the uterus, while the other IUD works by preventing ovulation. The argument of Hobby Lobby (and others that hold a similar position), is that this is a form of abortion and thus violates their deeply held beliefs.

There is perhaps some cynicism towards Hobby Lobby but I certainly give them the benefit of the doubt and trust that they hold these positions and think of this mechanism as abortion. I would personally disagree with this interpretation. I, like most people, am no fan of abortion, but I don’t see the processes that these three forms either allow or prevent would constitute abortion. Natural processes generally have the same outcome that comes about from either the morning after pill or IUD (that is, often the egg is never fertilized, if fertilized if often doesn’t embed, and if it embeds, it will often not come to term – there are percentages for each of these instances that are surprisingly high). But of course this is where the debate lies.

The flip side is the limitations that this puts on reproductive health decisions for women. The morning after pill can be utilized in instances of sexual assault to prevent the embedding of a fertilized egg. I am no expert of IUDs, but there are medical reasons (such as hormonal) why they would be necessary instead of using other forms of contraception, and this ruling will limit those options for employees of Hobby Lobby and similar companies.

One final thought on the decision itself is that it is pretty limited in the present. It covers specific birth control for specific corporations. Religious affiliated business (such as churches, Catholic universities, etc) already receive this exemption from the Obamacare mandate. This does not mean that people who work at these companies can’t have access to these contraceptives, it just means that the employer does not have to pay for them. The government can take on the cost and distribution itself.

This brings me to two more thoughts. The first is that it exposes another example of the silliness of employer provided health insurance as the primary driver of health insurance. There are certainly better ways than continuing to utilize a relic of World War II days when companies tried to entice workers with extra compensation during a time of wage controls.

The second point is that this is ultimately about abortion. I have many thoughts on the topic that I am not going to share on the blog (yet), but it does strike me as a continuing land mine as health care continues to shift. As entrenched as the abortion debate currently is, one reasonable compromise that has bi-partisan support is to not have any direct federal funding for abortion. That is, people are not compelled through taxation to fund abortion. That is the crux of this issue. Exemptions have been granted to religious organizations and now to 90% of corporations could potentially be impacted by this as well. However, as mentioned, the Supreme Court kept open the possibility that these forms of contraception are allowed if distributed by the government. This fact may open up a whole new issue in the not too distant future.

All this brings me to the final point, which is the idea of religious freedom. For people that are cheering for this decision, that is what they most cite. The first thing to notice is that this decision gives “closely-held” corporations (corporations where 5 or fewer people own 50% or more of shares) now count as people when considering religious freedom. While this was a narrow decision in the present, it could lead to further issues down the line. What if corporations use religious beliefs to discriminate against classes of people? What about other health care procedures that are not allowed by religious faiths (ie blood transfusions with Christian Scientists or vaccinations)? What might happen when the Supreme Court has a much more liberal bent and uses this decision as a method of destroying protections currently seen by religious institutions? I fear the main ramifications of this decision will be seen down the line. To avoid making these decisions is to imply that concerns about birth control are “legitimate” religious concerns, while the other concerns such as opposition to vaccinations, blood transfusions, certain types of medicine, etc. are not “legitimate” religious concerns, and that is a dangerous position for the Supreme Court to go.

The key point that I also think of is that religious freedom certainly covers freedom from religion. It wouldn’t take much to start defining what this really means in our country. There is a sense, I suspect, that religious freedoms are on the decline. I don’t think this is true. I think the issue is that the influence of a specific religion, Christianity, is waning. While this may seem like a victory that stems this tide, I, as mentioned above, am a little skeptical that is the case in the long term. Religious freedom is surely something to explore more in the future.

On a personal note, I am committed to making sure this decision has no impact one way or another on the business I give to Hobby Lobby.