Suspecting that a disappointing Court decision is coming doesn’t make it any better when it arrives, as did the Hobby Lobby opinion this morning, in which a 5-4 majority (led by Justice Alito) said that it violated the Religious Freedom Restoration Act of 1992 to require a “closely held corporation” (“family-owned,” but expect lots of litigation; apparently some 90% of American corporations may qualify!) to purchase a health insurance policy that provided free contraception to which the owners of that corporation object on religious grounds (nice summary here). There is a substantial silver lining, which is that the Court seems to endorse an opt-out like the one provided for non-profits: certify that you object to providing contraception coverage, and you don’t pay for that part of the plan. Either the insurer or the government does. Accordingly, today’s ruling would also appear to pre-emptively resolve (see also here) the next round of religious objections to the ACA, where some of those non-profits contend that even signing the paperwork saying they object to providing contraception somehow violates their religious beliefs, because signing the paperwork means they start a process the end of which is contraception (so would employing women at all, but never mind that, apparently).
Thus, it’s possible that more significant concerns are overblown; Leiter corrects several misimpressions here. It’s also possible that the decision cleverly avoids a much worse outcome: as Andrew Koppelman points out, the opinion both accepts that the contraception mandate serves a compelling governmental interest, and comes up with a remedy that lets women keep their contraception coverage.
But. I haven’t studied the opinion closely enough to be sure, and I’d love to be wrong, but I don’t see how that’s the end of it. As Joey Fishkin argues, what the case is really about is the politics of recognition:
“But this case was never really about health policy. It isn’t really even about the ACA, except peripherally. This case is about the politics of recognition: it is about recognizing conservative religious claims that (a) contraceptives are different from other forms of health care (an issue the Court somewhat finesses by suggesting that immunizations and so on “may be supported by different interests”), (b) religious people’s “conscience” deserves great deference and priority in the public sphere, certainly a higher symbolic priority than women’s health, and (c) perhaps most specifically on point, that religion is not something people do on their own time, in their own churches, but rather, is a way that apparently even large for-profit businesses may conduct their affairs—and if they choose to do so, society must find ways to accommodate their “full participation in the economic life of the Nation” (p.46). None of these—neither (a), (b), nor (c)—is really a legal claim. These are political claims. But this is high politics, not low politics. These are claims about how our nation is constituted and the place of religion in it” (see also the compatible comments by Dahlia Lithwick).
If he’s right about how to read the decision – and I think he is – then worries about its spread into other areas take on a new significance. It doesn’t help that the part of the opinion designed to ameliorate those worries comes across as completely ad hoc. Justice Scalia routinely reminds us all that courts need to decide cases based on principles, but he signs on to the following attempt to explain why today’s decision does not open the floodgates for similar such litigation on all topics:
“HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction. HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate” (slip op, 45).
That isn’t a principle. It’s an empirical claim, and it’s one about which doubt readily arises, as no one had any reason to think that they could refuse to cover vaccines prior to today. But even if Alito’s line of reasoning is correct, and the failure of anyone to make analogous claims so far is meaningful, one would think that it would inspire at least a moment’s reflection on the majority’s part that, on their construal of today’s ruling, only women are directly burdened by it. Maybe nobody had tried to deny other services because the view that women aren’t entitled to make their own healthcare decisions has a social purchase that other examples of medical paternalism by employers do not. One might even think it was important to intervene to protect these women from discrimination at the hands of their employers, not by providing contraception, but by stopping that discrimination. Now, Alito can respond that, if things go as the opinion advises, the “effect” on these women is “exactly zero,” since they will still get coverage from the government. That’s indeed better than nothing, but it still sends a signal that religious conservatives get their own way about health policy (only) when that policy has to do with women’s sexuality.
Alito tries to distract his reader from such ponderings with reference to a hypothetical universe in which HHS might require “employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide” (46). One has to admire the sophistry: there is no slippery-slope risk to the majority’s opinion because nobody so far has tested the waters, but the slippery-risk running the other direction requires the immediate erection of strong principles to prevent HHS from requiring coverage of procedures which are generally against the law, and the prohibition of which the Court has upheld.
Such language makes it hard to suppress the worry that the majority’s reasoning is either a failure to grant women equal protection of the law, or a declaration that equal protection for women is subordinate to the views of religious conservatives (it doesn’t help the optics that the Court also just struck down abortion clinic buffer zones with the completely specious theory that the plaintiffs wanted to offer loving “counsel,” and not scream in the faces of women that they were murderers. Judge Posner gets it right. Maybe those specific plaintiffs were loving grandmothers, but the Court apparently just got suckered by the oldest lawyer trick there is: pick a sympathetic plaintiff). Things don’t get any better in the next paragraph of today’s opinion. Ginsburg’s dissent raised the question of race discrimination, and at least one early commentator thinks that, even if race discrimination is off the table, sex discrimination might not be. Alito brushes all of this away:
“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” (46)
Sorry, anti-vaxxers. No soup for you! Of course, there isn’t a reason articulated here, so if I were a religious anti-vaxxer in charge of a closely held corporation, I’d be calling up my favorite attorney right now. If those lawsuits all fail, we will, at least, have discovered the (unstated) principle animating the opinion: sincerely held religious beliefs about women’s sexuality and the need to control it are more acceptable than sincerely held religious beliefs about other topics.
Carol Pateman proposed a long time ago that the supposedly neutral social contract theories of the seventeenth century actually served to entrench patriarchy, because they continued to confine women to the home, restricting their full participation in the polis. Hobby Lobby manages to underscore both Pateman’s point about the extension of patriarchy (because women in the workplace are being treated paternalistically by their father-bosses) and autonomist claims about the complete subsumption of society by capital (because the sex lives of women are now subject to attempted regulation by employers, even if government can save the day. One wonders if the original social decision to use employers as the way to provide health care marks the beginning of complete subsumption).
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I suggested this problem here before, but it bears repeating: this particular instance of the patriarchal deference to the rights of everyone but women needing reproductive care is substantially aided and abetted by the reduction of corporations to their owners whenever it’s convenient for those owners. The difficulty in squaring that circle is evident in the Court’s claim not only that Hobby Lobby stands to lose a lot of money if the ACA penalty provisions are upheld – including not being competitive in the labor marketplace – but also that corporations routinely do things (like exceed minimal environmental standards) other than make as much money as possible. Yes, well, perhaps a decision to express religious values should cost money, just like adhering to higher-than-minimum environmental standards does! Chick-fil-a closes on Sundays for religious reasons, and for a long time, their signs would say “the day is more important than the dollar.” Why shouldn’t a decision to value something other than money cost some money, including in the ability to hire workers who disagree with those values? Or, more pointedly, why should employers be insulated from the market costs of their views?
There is something even more fundamentally wrong here. Hobby Lobby is a large, big-box retail chain that employs over 13,000 people. If those people (or others like them) didn’t exist or refused to work for Hobby Lobby, the corporation would go out of business immediately and the owners would have to find something else to do. Hobby Lobby, Inc. takes advantage of the publicly-provided roads that its employees, managers, and customers take to get to its stores and that its owners use to get to their corporate offices. Those offices were erected with the protection of enforceable building codes that make sure they don’t fall down, and that try to make sure that everyone can evacuate them in the event of a fire. Hobby Lobby, Inc. also takes advantage of municipally provided services, including the installation of stormwater systems that deal with the massive runoff caused by big-box stores’ parking lots. Hobby Lobby, Inc. also takes advantage of local police and fire services that protect their investment in their stores. All of these things are provided substantially by property taxes paid by everyone living in the municipalities where the owners exercise their freedom to open a store. Hobby Lobby, Inc. also freely avails itself of services provided by state and federal taxes, such as the Interstate highways on which it can transport its goods (highways which have to be widened at great public expense when suburbanization creates new local markets for its stores). Hobby Lobby, Inc. also has no moral objections to taking advantage of the national defense system that keeps its stores safe from foreign intervention, or the publicly funded legal system that allowed them to challenge the ACA and that enables them to recover money from those who owe them. No, in general, it seems that Hobby Lobby, Inc. depends quite a lot on the society in which it does business, even as its owners seek to excuse themselves from its rules.
In the meantime, Hobby Lobby’s owners also take advantage of the legal structure governing corporations (Hobby Lobby, Inc. isn’t a sole proprietorship!), such as the fact that they aren’t personally liable for any bad things that their corporation might do. In other words, Hobby Lobby’s owners get to identify with the corporation when it’s a matter of religious belief, but not when doing so is inconvenient.
The contraception mandate may burden the religious beliefs of the owners of Hobby Lobby, Inc. We can take them at their word for that, I guess. But that doesn’t mean their religious beliefs are the only thing that needs to be considered here, and the interests and rights and conveniences of all those other stakeholders just got shoved under the carpet. Hobby Lobby, Inc. is not the same thing as its owners, and the theory that one can reduce a corporation – even a privately held corporation – to its owners (except, of course, when inconvenient for those owners) is one of the most willfully obtuse and destructive bits of ideology making the rounds today.
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