Some thoughts about the Hobby Lobby case
There are many well-written opinions about the Hobby Lobby supreme court case, and I suggest reading them — especially the experiences of those directly affected by this decision. This post was written primarily to facilitate discussion of this issue with my friends. Since it is public, anyone is welcome to post a reply, though you may not receive an response.
Much has been written and is being written about the Supreme Court’s recent decision to exempt Hobby Lobby and similar closely held for-profit corporations from providing health insurance that covers a certain subset of contraception options. I have little to add to the discussion. Having read the opinions, I suspect the Court made the correct legal decision. However, this is entirely beside the point. The ramifications of this decision are a much bigger issue, and I’d like to talk about those here.
First, it’s interesting to note that the factual accuracy of Hobby Lobby’s worries about Plan B was of little importance to the Court’s decision. The court merely noted that “according to their religious beliefs the four contraceptive methods at issue are abortifacients” 1 and that it was not the place of the court to question this belief, but rather to apply the relevant laws. 2
This may be the greatest tragedy of the case. Regardless of whether this is the correct way to interpret the law, Hobby Lobby’s issues with these methods of contraception are likely misplaced. The Court, in its decision, chose some unfortunate words to describe these methods: “They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4, may result in the destruction of an embryo.” 3 Note that the language here suggests that these methods are abortifacients - that they work by destroying an embryo. But this is by no means the scientific consensus.
The original brief said “a copper IUD is a device inserted into the uterus by a healthcare provider that works by interfering with sperm transport and fertilization of an egg and possibly by preventing implantation (of a fertilized egg in the uterus).” 4
Note how the original text emphasizes the chosen method of operation (preventing fertilization), and only includes the other as a possible (though convenient) side effect of this normal mode. The same is true of the other three methods of birth control at issue, the progestin IUD, Plan B, and Ella. It’s not even clear that these methods ever cause a failure of implantation. In fact, Wikipedia has the following to say about Plan B: 5
The primary mechanism of action of levonorgestrel as a progestogen-only emergency contraceptive pill is, according to FIGO, to prevent fertilization by inhibition of ovulation. The International Federation of Gynecology and Obstetrics (FIGO) has issued a statement that: “review of the evidence suggests that LNG (levonorgestreol) ECPs cannot prevent implantation of a fertilized egg. Language on implantation should not be included in LNG ECP product labeling.” In June 2012, a New York Times editorial called on the Food and Drug Administration (FDA) to remove from the label the unsupported suggestion that levonorgestrel emergency contraceptive pills inhibit implantation. In November 2013, the European Medicines Agency (EMA) approved a change to the label for HRA Pharma’s NorLevo saying it cannot prevent implantation of a fertilized egg.
Thus, it’s a misrepresentation of the evidence currently available to suggest that Plan B is an abortifacient. Furthermore, even if it did function in this way, implantation failure is perfectly normal. According to one expert, 80% of naturally conceived embryos fail to implant. 6 To give this point a religious color, this would mean that 80% of all the souls that ever existed died within about 10 days after conception. Even if these contraceptive methods were abortifacients, their effect is essentially non-existent compared to the constant, ongoing, completely natural loss of embryos due simply to the failure to implant. If this was as tragic and horrible as Hobby Lobby and others would have us think, why isn’t preventing implantation failure the primary goal of medicine as they see it?
What makes this worse is that by obstructing access to safe methods of contraception, Hobby Lobby inevitably increases the number of abortions that occur. Unlike the clearly humane contraceptive methods they are fighting, which function primarily by preventing fertilization, some abortions will occur at a point in the pregnancy when the fetus is capable of feeling pain and has some subjective experience. This entirely preventable suffering is tragic. It’s interesting to note that they take moral responsibility for their employees choosing to use certain birth control methods, but don’t take moral responsibility for their employees choosing an abortion later because emergency birth control wasn’t immediately available.
Secondly, there’s a strange bit of (apparently) wishful thinking in the Court’s decision. While they clearly don’t intend the arguments used to extend broadly beyond contraception, there’s a certain “why not?” hanging in the air. It’s this concern that Ginsburg’s dissent targets. In its defense, the Court says only this: “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” 7
Of course, the Court doesn’t want its decision to apply to vaccinations, but it’s not clear why it shouldn’t. At the least, this decision will extend the scope of the Religious Freedom Restoration Act (RFRA) test to these questions. As long as a religiously motivated corporation can show that a coverage mandate is not the “least restrictive” means of providing a compelling governmental interest (widespread vaccinations), the RFRA test used in this decision would seem to overrule it.
Furthermore, the Court suggests that the government picking up the tab for corporations with a moral objection to contraception succeeds in accomplishing the government’s goals and in being less restrictive to religious freedom, and that the existence of this option is one reason the law fails the RFRA test. 8 But this would seem to apply equally well to vaccinations, or even more extreme “sincerely held” views. Some religious extremists believe that they should reject all medical care and rely on their faith to heal them. If one of them owns a business, should they be exempt from providing any insurance at all?
I suspect that this example illustrates both a problem with the current insurance system, and (ironically) a suggestion for a better way. Clearly, with corporations like Hobby Lobby setting the rules for acceptable medications, employers cannot be trusted to provide medical care. Even when employers do provide good insurance, the ideology of the system suggests that the unemployed should not have or do not deserve medical care. This is clearly unacceptable, and it’s a problem that is probably best solved by moving away from a system where two unrelated functions (employment and healthcare) are tied so closely together. A single-payer system would solve many of these problems.
Lastly, no matter what the correct legal decision was, it’s worth saying something about the attitude of Hobby Lobby and other conservative voices towards women’s issues. Much of the discussion in these circles surrounding the contraception “debate” has been sterilized of empathy towards the incredible emotional and physical toll of pregnancy and the psychological effects of rape. The position that sees nothing but the possible death of a days-old embryo as worthy of concern would be laughable if it wasn’t so destructive. It’s sad that non-issues like this will cause many women to suffer needlessly. It’s sad that we’e okay with letting corporations like Hobby Lobby dictate our medical care. And it’s sad that a group of people who claim to follow Christianity don’t show the empathy and love for others their religion supposedly advocates.