[A]s John J. Dilulio Jr., the first director of the White House Office of Faith-Based Initiatives, writes over at Brookings, “Love it or loathe it, the Hobby Lobby decision is limited in scope.” It’s about how the Religious Freedom Restoration Act applies to this particular objection from Hobby Lobby and other “closely held” companies, or businesses that are mostly owned by a small group of people who also happen to run them. And the Court went out of its way to clarify that their ruling does not apply to other possible medical objections, like blood transfusions and vaccinations.
Most importantly, this ruling won’t necessarily prevent women who work at Hobby Lobby, Conestoga Wood, or other religious companies from accessing birth control through their insurance plans. In the majority opinion, Alito specifically suggests that the government could use the same kind of exemption it has set up for non-profit organizations: Companies would have to sign a short document certifying that they object to providing birth-control coverage, and then the government would take over coverage from there. Several separate court cases about this accommodation are still pending in lower courts, but the point is that the Court doesn’t think bosses should get to deny affordable birth-control access to their employees—they just shouldn’t necessarily have to pay for it.
Roy continues: “[W]hile the government can’t compel Hobby Lobby to finance abortifacients, it can compel taxpayers to do so. Isn’t that a distinction without a difference?” I think there is a difference. The government can let pacifists out of military service without letting them out of paying taxes to support the military, and nobody believes that distinction meaningless. Pro-lifers should object to having their tax dollars spent on abortifacients. But it’s worse for pro-lifers to be forced to offer insurance that covers them. It’s worse because it requires more direct cooperation on their part, and because it carries a greater risk of communicating an untruth about their moral conviction.
Roy’s arguments and mine bear a family resemblance to ones that got aired during the debate over the individual mandate. Most opponents of it argued that there was a difference in principle between being forced to pay taxes that are then used to provide insurance and being forced to buy insurance. If you think that argument holds up (as I do, and most conservatives do), the distinction holds up here as well.
Ginsburg’s dissent begins by calling the decision one of “startling breadth.” The high court ruled that under the Religious Freedom Restoration Act, the government cannot require “closely held” corporations–those with most of their stock owned by fewer than five individuals–whose owners possess “sincerely religious beliefs” against the use of contraception to provide health insurance to employees that covers birth control. Ginsburg fears that the majority has “ventured into a minefield” with the decision, which could allow corporations to “opt out of any law” that “they judge incompatible with their sincerely held religious beliefs.”…
Ginsburg’s opinion, some legal experts say, may turn out to be a self-fulfilling prophecy. By stating that the opinion is much broader than the majority claims it to be, she may be providing lower-court judges with a stronger foundation to provide more religious exemptions in the future.
“If the dissenters had simply taken Kennedy at his word in his concurrence, and simply agreed it was narrow, the lower court judges would have had to work very hard to say this applies broadly,” said Eric Segall, a professor at Georgia State University College of Law. “Now they can just cite Ginsburg, and say she thought it applied broadly.”
The court cited the government’s ability to meet women’s need for affordable access to contraception in other ways, specifically pointing to government provision of birth control as an option. But in the current reproductive rights environment, that will never happen. Opponents of reproductive rights are trying to limit access to comprehensive women’s health care from all directions. At the federal level, they have attempted to defund Title X, which provides funding for family planning for our poorest sisters in community clinics. At the state level, in Texas for example, there are attacks on government money for contraception and clinics that offer abortion care. There is a movement to prohibit government support not only for abortion services—which, with a few exceptions, has existed for three decades—but also for emergency contraception and certain forms of birth control. Even a woman’s ability to pay for her own coverage is under attack: Some states’ exchanges and the federal exchange are prohibited from providing insurance that covers abortion care.
In sum, the anti-choice movement wants to limit not just affordable access, but all access to abortion and birth control, whether it is backed by the government, by employers, or purchased by private citizens. It is an attack at all levels, and today’s decision is just another success in these efforts.
I like to think that I care about both the women and the religious conservatives who share this great nation of ours. It seemed to me from the beginning that being made to pay for something that someone views as deeply morally wrong (or to facilitate the transaction for same, if you take the general view that employee health insurance ultimately comes out of employee wages) was going to be a giant burden on people of conscience. And because the loss to women was small, it seemed fairly obvious to me that we should grant the freedom of conscience to people who clearly have some very deeply held beliefs — not because women’s health is not very important, but because this was not going to have a very important impact on women’s health.
And yet the logic of politics, and the culture war, made this sort of fine distinction-drawing impossible. As I see it, this case should never have made it to the court; the Barack Obama administration should have pre-empted the issue by quietly allowing exemptions for nonprofits and closely held corporations that had clear and deep religious beliefs that existed outside of the desire not to pay for contraception. (Hobby Lobby, for example, is closed on Sundays in observation of the Sabbath, even though this costs them sales; I think we can all agree that the Little Sisters of the Poor have demonstrated a fair amount of commitment to demanding religious principles.)
Instead, the administration chose to pick this fight — and got a definitive ruling that will probably have much broader impacts than quiet exceptions. Nor is this surprising; it was pretty predictable from earlier rulings like Citizens United, in which the court also held that people don’t lose their First Amendment rights simply because they have come together in a group or legally organized that group as a corporation.
Conspicuously absent from yesterday’s post-Hobby Lobby hullabaloo was the acknowledgment on the left that the decision was the product of a court. Distilling into a single line what was a popular and widely disseminated critique, the New York Times’s Nick Kristof tweeted a picture of Justices Kennedy, Roberts, Scalia, Thomas, and Alito, sardonically labeling the quintet as “The experts on women’s health on the Supreme Court who ruled today against contraception coverage.” A few hours later, Senator Harry Reid’s office pushed out an assessment that was cut from the same unlovely cloth. “It’s time that five men on the Supreme Court stop deciding what happens to women,” Reid tweeted. Among the hysterical, that sentiment was ubiquitous.
One cannot help but wonder whether Kristof and Reid are aware of what the Supreme Court actually does — which, as anybody who has even a fleeting grasp of American civics knows, is not to set American policy, on health or anything else, but to interpret and uphold the law. In this particular case, the justices were called to judge whether a mandate that was pushed out by the Obama administration in 2012 was in conflict with another law, the Religious Freedom Restoration Act, that was added to the books in 1992. This being so, the degree to which those who decided the case are “experts on women’s health” is wholly immaterial. The justices are jurists not doctors — they are nine appointed attorneys whose role in the American settlement is to provide legal answers to legal questions. Man or woman; straight or gay; handsome or ugly; Jew, Catholic, or protestant — the law must remain the law, regardless of in whose name its intricacies are decided. The alternative would be disastrous. Does Harry Reid aspire to see Roe v. Wade, which was decided by nine men, overturned?
Identity politics notwithstanding, the central implication of the Kristofs and Reids of the world — that the very involvement of the Court in this area is uncouth — is a rather strange one. The only way that such questions will not end up in the courts is if a political accommodation is reached: If Congress moves to reconcile its incompatible laws; if the Obama administration elects not to push the state into hitherto unthinkable areas; or if the Constitution is amended to render moot the question of what governments may require of the religious. In the absence of such action, the courts will inevitably be asked to intervene. Does the pair have a better way of resolving legal disputes? Is Marbury v. Madison to be reconsidered each time the result of a Supreme Court case is not to the liking of the New York Times?
[H]uman nature being what it is, loss aversion is generally more potent than the joys of winning, and even a string of victories doesn’t necessarily satisfy; if anything, it can just sharpen the appetite for further victories still. This is why ascendant parties, no matter their ideology, are rarely magnanimous to the defeated or the disfavored: Where a transformative agenda is being pursued, one set of gains is more likely make the next set of items seem that much more necessary, more essential, more inarguably correct. And under such circumstances, residual, rear-guard resistance can actually inspire more outrage than a stronger opposition, because the winning side comes to feel that it’s offensive that anyone is still fighting — don’t they know the battle’s over, don’t they know that history’s verdict has been rendered? Will no one rid me of this troublesome craft store?
This last impulse, I would suggest, is particularly potent in cases where the transformation in question is not necessarily delivering on its promises, and where there’s a felt need to find someone outside the enlightened community/the holy Catholic empire/History’s vanguard to blame for that falling-short. Where our current kulturkampf is concerned, for instance, I think most contemporary liberals are aware that post-1960s America is not quite the liberated and egalitarian utopia that was promised … but many of them are quite determined to believe that their own ideology is blameless, that there aren’t actually any internal contradictions in social liberalism, and that contemporary social problems must always and everywhere be the fault of something called “conservatism,” in all its varied guises. The revolution hasn’t failed or fallen; it’s just been resisted and disrupted by wreckers and reactionaries; etc. Which is how you end up with the sense, palpable in the liberal Twitter reaction to the Hobby Lobby decision, that if it weren’t for Catholic Supreme Court justices and evangelical-owned craft stores, all sorts of problems would gradually be washed away, like tears in a soft progressive rain.
And perhaps, if current trends persist for long enough, we will get to actually test that proposition. But not yet, not yet.
Via the Right Pundit.