July 1, 2014

The difference between requiring a business to cover contraceptives for employees and barring it from committing acts of racial discrimination.

The dissenting opinion in Hobby Lobby and many sincere commentators worry that the Supreme Court's opinion could mean that the government won't be able to require businesses — if they cite a religious objection — to refrain from race discrimination and other acts that we, as a society, consider morally wrong and terribly harmful.

But the majority opinion makes a sharp, clear distinction that it's very important for people to understand before they accept the invitation to become inflamed over the horrible prospect of religious exemptions from laws that restrict businesses that are causing harm to others.

Under the Religious Freedom Restoration Act, when the federal government imposes a substantial burden on the exercise of religion, it must justify that burden by showing that it is the least restrictive means of achieving a compelling governmental interest. In Hobby Lobby, the compelling governmental interest is comprehensive preventive health care for women, and the majority said that requiring the employer to include coverage of all FDA-approved contraceptives in its health care plan was not the least restrictive way to to serve that interest. There are other ways the government could get the cost of contraceptives covered, ways that wouldn't rope in the employer.

So the government's interest could be served without imposing the burden on religion.

But when the government bans race discrimination, it is serving a compelling interest in banning race discrimination and there is no alternative way to achieve that end. From the majority opinion:
The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
With race discrimination, the corporation that gets the burden is the source of the harm to others that the government seeks to eliminate. That can only be done by regulating the business. It's automatically the least restrictive way to meet the compelling interest.

As Chief Justice Roberts famously said (in another context): "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Making employers cover particular health needs of employees is tapping them to provide a benefit. The corporation is not the source of the harm. It's the source of jobs. Historically, businesses have included health insurance as part of the pay package, and then the employees are getting their personal health-care needs met with this benefit, but there are other ways that health care could be funded. And that's why the government in Hobby Lobby couldn't show that it had used the least restrictive alternative.

So don't think that Hobby Lobby would apply to situations where the business is itself inflicting the harm to others that the government wants to alleviate. So let's say that in the future the federal government would like to ban employment discrimination against gay people, and a business wants to use RFRA to claim an entitlement to continue to discriminate. Quite aside from the difficulty of expounding a sincere religious belief that is substantially burdened by needing to refrain from discriminating, the government's argument that banning discrimination would easily satisfy the least-restrictive-alternative requirement.

The way to stop discrimination on the basis of sexual orientation is to stop discriminating on the basis of sexual orientation.

Those who don't like what did happen in Hobby Lobby have an incentive to portray it as portending horrible consequences that, in fact, the Court took pains to foreclose.

95 comments:

Tank said...

I cannot imagine trying to explain this to someone.

And some large percentage (80%?) would not understand this even if they read your explanation 100 times.

Americans are stupid. Often on purpose.

Larry J said...

There are other ways the government could get the cost of contraceptives covered, ways that wouldn't rope in the employer.

It still doesn't address why, of all medications, contraceptives must be "free" for women. If a woman needs some form of heart medicine to stay alive, she has to pay a copay. Why must contraceptives be "free", especially when they're so inexpensive.

It's a different matter if a woman is prescribed contraceptives to address a medical issue. Most if not all prescription drug plans and insurance policies already covered that case and even the Catholic Church didn't object.

To those who claim the ruling allows businesses to force their religions views on their employees, don't be so stupid. It would be one thing if a company tried to force their employees to use contraceptives against their religious views. Is there any company that does that? It's quite another thing to say that allowing a company to not pay for something that's widely and inexpensively available is forcing their views on their employees. Hobby Lobby isn't firing their employees who use contraceptives - they just don't want to be forced to pay for certain types of contraceptives that they find morally objectionable.

Pookie Number 2 said...

Those who don't like what did happen in Hobby Lobby have an incentive to portray it as portending horrible consequences that, in fact, the Court took pains to foreclose.

And how they respond to that incentive reflects whether they are, in fact "sincere" (your word). So far, the evidence is underwhelming.

YoungHegelian said...

The RFRA came about to defend the rights of Native American tribes to use peyote in their religious rituals. Last time I looked, possession of peyote was a felony for the rest of us. So, the RFRA was designed to allow a drug felony to pass under the banner of religious freedom.

Was the reaction among the general populace to start the Holiness Church of Let's Get Utterly Bombed Now in order to have free & protected access to prohibited substances? Nope, not at all. Nor, is there likely to be an upswell in membership in God's Sanctified Temple of Peace, Love, and Making Life Difficult for the Darkies due to this ruling.

eric said...

And yet, a business ought to be able to discriminate. What business is it of ours if a business wants to be all women? Or all straight couples? Or all black people?

Take your business somewhere else if you don't like it.

Forced association sucks. We ought to have freedom of association. It was wrong to force business to discriminate under the old Jim Crow laws and it is equally wrong to force businesses not to discriminate.

The government ought to stay out of it completely.

And I'm not even a libertarian.

Ignorance is Bliss said...

...that, in fact, the Court took pains to foreclose.

Just to be clear, the court took pains to point out that the law, as written, foreclosed those horrible consequences.

Ignorance is Bliss said...

To expand on my previous point, it is not the Supreme Court's job to prevent horrible consequences. If the law, as written, results in horrible consequences, then the court should accept that. If people don't like those consequences then they should ask Congress to change the law.

rhhardin said...

Freedom of association ought to be in the argument.

That is, you can refuse to do gay weddings.

The way freedom of association gets overridden is when there's corrupt politics (so only whites can vote) or there's private violence (so if you serve blacks you get burned down).

Otherwise there are lots of businesses that want the business of blacks, or gays, or whatever. Pick one of those.

By requiring serving blacks, you're requiring only what most businesses want to do anyway, but can now do without fear of the man.

It does not follow that eg gays are such a civil rights case. There's no such private violence against serving them. Let the businesses that don't want the business opt out.

Rather than being fined and shutting down, or burning down thanks to the gay mafia.

So, bad analogy with race and hobby lobby and gays.

Bruce Hayden said...

In Hobby Lobby, the compelling governmental interest is comprehensive preventive health care for women, and the majority said that requiring the employer to include coverage of all FDA-approved contraceptives in its health care plan was not the least restrictive way to to serve that interest. There are other ways the government could get the cost of contraceptives covered, ways that wouldn't rope in the employer.

Ann, of course, is the expert here, teaching the stuff, but as I read the decision, my impression was that the majority started down the compelling state interest prong, and then, almost abruptly stopped, and said, "let's just assume a compelling state interest". And, I suspect that they did so because the least restrictive means prong was so easy. It was essentially, from the point of view of the majority, a slam dunk. The Administration had provided a less restrictive means to churches and religiously affiliated non-profits. The only difference here was that these companies were for-profit and not non-profit. The mere provision of a less restrictive means to these more favored organizations was essentially an admission, by the Administration, that the means provided to Hobby Lobby, et al. were not the least restrictive available. They then went on, to hammer the nail in a bit more, to point out that the government could also fund birth control, and that would be less restrictive.

MadisonMan said...

Very clearly stated, professor. Thank you.

marcwinger.com said...

The Roberts' Court is readjusting to the disastrous decision to allow the obamacare mandate to exist in the first place.

Bruce Hayden said...

It still doesn't address why, of all medications, contraceptives must be "free" for women. If a woman needs some form of heart medicine to stay alive, she has to pay a copay. Why must contraceptives be "free", especially when they're so inexpensive.

I will suggest that the decision to make all forms of FDA approved contraception (aborting and non-aborting) free to women was purely political. I don't think that it can be rationally justified over, say, giving people free heart medicine, etc. Why should drugs that primary facilitate a recreational activity (sex outside of procreation) be provided free, but drugs that save lives come with co-pays? Moreover insurers are free to devise drug formularies that determine which non-birth control drugs they will cover, and how much their insureds will pay for those medicines on the formularies. But, the one exception to this is that the insurance companies must supply all FDA approved methods of birth control, aborting and non-aborting, free of charge.

Why the distinction, giving such a preference to recreational drugs over life-saving drugs? Because single women were essential to Obama's 2008 and 2012 wins. Remember the Julia commercials? That, along with Sandra Flake, is who this mandate was aimed at. It is both payoff and enticement. And, it was never about money (because there really isn't that much involved), and always about principle and pandering to a base.

I also think that you also have to keep in mind that this is a back door way to get abortion covered by the PPACA. They had to give abortion up on the front end, to get buy in from some pro-life blue dog Democrats. The four (of the twenty) methods of birth control that Hobby Lobby, et al. were protesting were allegedly abortifacients. The other 16 FDA approved methods of birth control mandated operated by preventing fertilization/conception. These 4 operated by preventing implantation, etc. And, thus, from the point of view of many, operate by killing a human life. Former Sec. Sebelius almost assuredly knew this, having been raised Roman Catholic, and having been almost thrown out of her Church for her stand on abortion. Which is why I think that this was an intentional, back door, method of getting abortion back into ACA coverage.

Bart Torvik said...

Larry J said: "It still doesn't address why, of all medications, contraceptives must be "free" for women. If a woman needs some form of heart medicine to stay alive, she has to pay a copay. Why must contraceptives be "free", especially when they're so inexpensive."

I believe the idea is this: Obamacare says preventive care has to be provided by insurers without cost share (i.e. copays) and HHS determined that contraceptives are preventive care. So contraceptives aren't uniquely "free" (and "free" here really means "no copay" -- presumably the cost is paid as part of the premium). All the services that qualify as preventive care are listed at the bottom of the page here.

ken in sc said...

The Mormon church used to, or still does own the Ore-Ida potato company. At one time they deducted a 10% tithe to the church from all employees pay. They were taken to court about it and lost. The church owns a number of businesses. I think ZMC department stores in the biggest.

However, there are plenty of limits to the religious freedom of businesses.

Levi Starks said...

Nina Totenberg has a different opinion, and she's an NPR news analyst.
Jut thought you'd like to know.

jacksonjay said...

Seriously, who am I gonna believe, Althouse or Lena Dunham?
Althouse or Fluke?
Althouse or Clinton?

I would love to embrace the idea that reasonable heads would prevail, but ....., not a chance.

geokstr said...

The only ones perpetuating this myth that there is a correlation between the Hobby Lobby decision and possible racial discrimination are those who desperately need to keep the racist bogeyman alive: Democrats, race-hustlers, community organizers (but I tripeat myself) and all other species of leflings. For them, everything must be couched in the aura of the victimhood of their various bases, or the plantation may depopulate in a hurry.

And on top of all that, the shrieking from the feminists about denying them their contraceptive rights is laughable and absurd. I believe that Hobby Lobby only objected to a small number of drugs, all abortifacients. There is no prohibition in their insurance policies against condoms, the pill, IUDs et al, and most of which are free from various sources or dirt cheap everywhere else.

Radical feminists have long been nothing more than the vagina-pandering version of the race pimp.

Left Bank of the Charles said...

Would the Obama administration have won Hobby Lobby if they had shown that the compelling government interest behind the rule in question was to include coverage of all FDA-approved contraceptives in employer health care plans?

Then the business is inflicting the harm to others - not providing the coverage - that the government wants to alleviate.

In other words, did the loss come from engaging in euphemisms like "preventive health care for women" instead of saying what they really meant?

SGT Ted said...

So don't think that Hobby Lobby would apply to situations where the business is itself inflicting the harm to others that the government wants to alleviate.

The lefty and feminist supremacists temper tantrums over this ruling rely on claiming that businesses that don't give them what they want, when they want it and for free is "harming women". The entitlement attitude is striking.

Brando said...

The level of vitriol shared over this opinion surprises me quite a bit. This is not a case of the government banning the sale of contraceptives, which would be reason for uproar, or even the case of a privately owned pharmacy refusing to sell contraceptives which (in the case of a pharmacy that is the only one for hundreds of miles) is at least troubling from a practical perspective and I could see people being upset.

But here this is about whether an employer should have to provide a benefit--a benefit that pre-2010 no employer was required to provide, and many are exempted from providing now (even under ACA). But from the reactions it sounds as though people really think their rights are being taken away. My only explanation for it is the following:

1) Ignorance. Some people haven't actually read the opinion, so think this can be applied to let religious people get any exemption to anything they want and oppress anyone over anything. The opinion makes clear that this is not permissible, but I doubt most people read the long opinion.

2) Concept of corporate personhood. For a lot of people the idea of a corporation having certain rights just doesn't make sense--how can a corporation have free speech rights? or religious rights? The Court made clear why this is so--the corporation being simply a collection of people, who don't give up their rights simply because they've taken on the corporate form. But in an era of hating big business, the idea that Goldman Sachs can have rights that seem like they only belong to humans seems ghoulish to a lot of people.

3) Culture war. Hobby Lobby is a big box store, and its owners' objections are based on their Christianity. The idea of Christians objecting to something as widely accepted as birth control is what is really bothering most of these people. They're seen as a cultural "other" and getting a chance to deny contraception--even if by that we just mean deny having to offer it in a health plan--seems so backward and dismissive of women's needs that the critics won't consider the actual practical impact of this ruling.

George said...

I didn't think my opinion of Bazelon could sink lower but between her ignorant rants over Hobby Lobby and her flat out dissembling over Harris I was sadly proven wrong.

Basil said...

Except that the Constitution does not give the federal government the power to ban employment discrimination on the basis of sexual orientation, which is a concept the framers of the 14th Amendment would not have entertained in any fashion, as they were overwhelmingly Puritan Christians.

The power grab that is underway to benefit homosexual and other sexual practices may certainly be argued in good faith as good or bad law or policy, but there is no good faith argument that sexual orientation is covered by the 14th Amendment.

Winning elections and changing minds and hearts is the way to gain legitimacy, not through raw judicial power. See, Roe v. Wade.

mccullough said...

Progressives don't distinguish between the employer causing the harm and the employer not paying for stuff. Providing employees with insurance that must cover certain contraceptives is no different to them than the minimum wage law. It's exploitation if employers don't provide insurance that covers 20 different kinds of birth control.

Mike said...

Willful ignorance is one of the hallmarks of progressivism. Ginsburg's tantrum of a dissent was an excellent example of this idiopathy in action.

chrisnavin.com said...

I've heard stories about Catholic nuns, while young, sublimating all of their sexual desires and romantic longings to their religious faith, and I wouldn't be surprised there's something similar going on with parts of feminist ideology.

**I have little empirical evidence of course, as obviously people read Althouse comments for empirical rigor.

On the one hand, there's been a push to legalize prostitution, claim men and women's sexual natures are the same, glorify the stripper-pole, remove shame, free women from repressive norms and traditions with bad art like the Vagina Monologues etc.

On the other hand, there's the very anaesthetic, humorless, dour kind of ideologue and intellectual sacrifice required for feminist purposes, expressed in extreme cases by a professed loathing for babies and reproduction (I can see some late teen girls and early twenty somehings wanting to strike out on their own and get away from babies...but throughout their whole lives?)

If I have a point, it's that most of us recognize great importance in this issue, which possibly fuels the feminist and reproductive rights Leftists and some genuine ideologues as much as church doctrine when it comes to our laws.

darrenoia said...

This particular issue seems to represent the nadir of leftist echo chamber "thinking." The idea that something nobody thought necessary or important even a decade ago (free birth control) is now, somehow, by dint of ACA an inalienable right is itself laughable. The prioritization of this specific medication, above all others, including life-saving medicine, is blatantly political.

A simple thought experiment reveals the hypocrisy of the left on this issue. Reverse the polarity. A Republican Congress mandates that, for the good of public safety, all citizens must carry guns for self-defense. Despite massive objections by half the population, the law is passed. The president then uses the broad discretion strangely allowed by a multi-thousand-page law to further mandate that all employers must purchase hand guns for their employees, or pay a stiff penalty — strike that, tax.

As someone opposed to the birth control mandate, I would also oppose this law, because I think employers should have the right to follow their consciences freely.

I doubt many liberals who support the birth control mandate would also support the gun law, though. They're about ends, not principles.

I have yet to see a principled argument in favor of the mandate that was just struck down.

Ann Althouse said...

"Nina Totenberg has a different opinion, and she's an NPR news analyst.
Jut thought you'd like to know."

Will check it out later. I like to rein in the msm specialists.

Anybody care to try to say how her analysis differs from mine and to opine about whether she missed the part of the opinion I highlighted and if she did not, how she avoid the distinction I say the Court clearly made?

Ann Althouse said...

That's exactly the kind of exam question I write for law students and upon which half your semester grade would hang.

So get on it!

Ann Althouse said...

Please drop links for things you're seeing that you think I might be able to shed some light on.

tim in vermont said...

The usual lefties are as determined to misunderstand this as they were George Will's column.

Larry J said...

Bart Torvik said...

I believe the idea is this: Obamacare says preventive care has to be provided by insurers without cost share (i.e. copays) and HHS determined that contraceptives are preventive care. So contraceptives aren't uniquely "free" (and "free" here really means "no copay" -- presumably the cost is paid as part of the premium). All the services that qualify as preventive care are listed at the bottom of the page here.


I believe Bruce's post just above yours is the more accurate explaination. On the matter of which medications qualify under preventive care, statins are supposed to lower your risk of a heart attack. I pay a copay on my statins. If you're prone to blood clots, you'll likely be put on an anti-clotting medication. You'll pay a copay for that, too. A high percentage of all prescription drugs could be considered a preventative prescription. Should they all be "free?" No, the most likely reason is political pandering to a solidly Democrat voting block.

Chuck said...

Dear Professor Althouse;

Like you, I have read all of Hobby Lobby; Alito, Ginsberg and the minor partial concurrences.

What I am struck by, in addition to the rank misinformation being advanced by the partisans (and almost all of the misinformation being advanced by the losing side), is how remarkably limited the holding is, and how much political theater is being made out of a decision whose main place in future Constitutional history is likely to be as a citation-footnote, supporting some purely tangential notion or argument.

I am genuinely interested in your opinion about that. Thank you, and thank you for your very fine analysis of this decision.

Freder Frederson said...

It still doesn't address why, of all medications, contraceptives must be "free" for women.

Of course, it is not just contraceptives that are required to be covered without a copay.

But of course, you are just too lazy and ignorant to acknowledge this.

Freder Frederson said...

The four (of the twenty) methods of birth control that Hobby Lobby, et al. were protesting were allegedly abortifacients.

No they're not. Just because you, and the owners of Hobby Lobby, believe it is true, doesn't make it so.

Freder Frederson said...

Willful ignorance is one of the hallmarks of progressivism.

Well, there must be a hell of a lot of progressives commenting on this thread today.

gregq said...

"So let's say that in the future the federal government would like to ban employment discrimination against gay people, and a business wants to use RFRA to claim an entitlement to continue to discriminate."

Well, if the government wants to do that, it can simply state in the law that RFRA does not apply to the law, and then we're done. No?

ObamaCare only ran into this problem because the Dems were busy lying about what ObamaCare would and wouldn't do, and so decided not to put in an RFRA waiver.

gregq said...

Brando said...

The level of vitriol shared over this opinion surprises me quite a bit.


Why? This is about left-wing culture warriors once again forcing their beliefs on everyone else. Why are you surprised that they're outraged they can't bully everyone else. Haven't you been paying attention to the defenestration of anyone who holds the "wrong" views on gay marriage? Or the "rape epidemic"?

This is just more of the same. The intolerant left (pardon the redundancy) can't handle the thought that anyone might be allowed to disagree with them.

TosaGuy said...

"The level of vitriol shared over this opinion surprises me quite a bit." It shouldn't because it's election season and the professional left (which is backed into a corner) needs donations for their organizations and voters for their candidates. It's time to stoke the outrage machine so the money and votes will flow.

gregq said...

Freder Frederson said...

The four (of the twenty) methods of birth control that Hobby Lobby, et al. were protesting were allegedly abortifacients.

No they're not. Just because you, and the owners of Hobby Lobby, believe it is true, doesn't make it so.


1: If you're claiming that they don't, in fact, prevent the implantation of a fertilized egg, then you need to get out of the left wing hothouse and come join the real world.

If you're claiming that "birth control methods that prevent the implantation of a fertilized egg" aren't "abortificants", you're playing stupid word games, and wasting everyone's time. The word doesn't matter, the reality behind it, does.

2: Even if you were right, under RFRA IT DOESN'T MATTER. RFRA simply requires a "sincerely held religious belief". So it's utterly unimportant what you believe, ALL that matters is what the owners of Hobby Lobby believe.

Don't like that? Take it up with Clinton (who signed RFRA), and all the Democrats in the House and Senate in 1993, who passed it.

MayBee said...

What I love is that people have been perfectly happy shopping at and doing business with companies that may not have been offering zero dollar contraception to their employees at all.

Now all the sudden they just can't stand the thought of shopping at Hobby Lobby ever again, over a few forms of birth control.

As Ace talks about, it is sad to live the poiliticized life.

DKWalser said...

"'The four (of the twenty) methods of birth control that Hobby Lobby, et al. were protesting were allegedly abortifacients."

No they're not. Just because you, and the owners of Hobby Lobby, believe it is true, doesn't make it so.

What part of the word "allegedly" are you not understanding? Four of the forms of birth control prevent the implantation of a fertilized egg. Many allege that this is a form of abortion. That you have a different understanding of the term abortion does not mean that many people have sincere moral objections to this form of birth control.

MayBee said...

Why don't the people who hate this decision try to imagine an insurance mandate for something they absolutely don't want to happen?

Someone else will head HHS someday, with different campaign donors. Emily's list isn't the only game in town.

Unknown said...

Preventative, Free:

13.Sexually Transmitted Infection (STI) prevention counseling for adults at higher risk
14.Syphilis screening for all adults at higher risk

Somehow I do not think this is supposed to provide advice to refrain from gay sex or otherwise reign it in.

MayBee said...

The link from Bart on Obamacare facts is pretty funny. It has a list of required care
For Adults
For Women
For Children

Hmmmm. Either men don't get special care, or men are the adults.

Bruce Hayden said...

No they're not. Just because you, and the owners of Hobby Lobby, believe it is true, doesn't make it so.

You are forgetting the five Justices in the majority who also believe such.

The distinction made by the plaintiffs, and accepted by the majority, is that 16 of the 20 methods of birth control that the FDA has approved prevent conception. The other four (including, I believe, at least one type of IUD) prevent pregnancy post-conception. These are the four that they were refusing to pay for. The critical distinction is whether or not a human life is being sacrificed, at least as in their belief (you may believe it starts later - I am personally fairly ambivalent at this point in the process). The distinction between pre-conception and post-conception birth control is why both the Supreme Court and I have used the term "abortifacient" in regards to the four post-conception birth control means objected to by the plaintiffs. And, why the question is really about abortion, and not birth control.

SGT Ted said...

Lefties pretending to be "oh so concerned" about the rule of law is just so precious, given what the guy they voted into the White House Twice is doing to ignore and flout the laws on the books that they don't like.

n.n said...

Corporations are families of loving and not so loving people with overlapping or convergent interests. The corporation as an entity takes on and expresses certain characteristics of its constituent parts.

Bruce Hayden said...

ObamaCare only ran into this problem because the Dems were busy lying about what ObamaCare would and wouldn't do, and so decided not to put in an RFRA waiver.

I think that this has to be reiterated. A RFRA waiver could have been added to the ACA fairly easily. BUT, if it had been, it likely would not have passed Congress. Back to those pro-life blue dog Dems who were sitting on the fence at the time. The primary reason that a RFRA waiver would be needed in the legislation would be to allow abortion, or, in the Hobby Lobby case, abortifacient type birth control. That was what was on everyone's mind at the time, and the most logical reason that a RFRA waiver would be included. So, including it would have been a red flag for pro-life Dems, whose votes were necessary for passage.

Sebastian said...

"Those who don't like what did happen in Hobby Lobby have an incentive to portray it as portending horrible consequences that, in fact, the Court took pains to foreclose."

Right. Won't stop them. Nor will your (much-appreciated) analysis. The culture wars must go on. The Other must be crushed.

Michael said...

Freder F:

As you probably know, the original ACA which was passed into law and signed by the President had no provision for free birth control/abortifacts, etc. This oh-so-vital piece of the legislation was tacked on by bureaucrats, the real rulers of our once great nation who do the job that we pay others to do.

Brando said...

""The level of vitriol shared over this opinion surprises me quite a bit." It shouldn't because it's election season and the professional left (which is backed into a corner) needs donations for their organizations and voters for their candidates. It's time to stoke the outrage machine so the money and votes will flow."

I think what I find surprising is that even a cursory glance at what is really at stake here seems so trivial. Is this really the best the Left has this year? I remember a time when the battles were over FDA bans of morning after pills, or state legislatures restricting abortion. Now, it's anger over whether employers can opt out of having to pay for certain coverage? Really? That's your example of rights being violated???

Meantime our Nobel Prizewinner is sending troops into Iraq to do who knows what exactly, and planning to arm the "good guys" in Syria because that's not anything that ever backfired on us before. But hey, let's lose our lunches over some employees losing a dubious benefit that they didn't even have four years ago.

Even if you believe that more people should have more access to birth control--and believe me, any flight on coach these days will make you VERY pro-birth control!--the idea that the best way to accomplish this is by telling Hobby Lobby to include it for free in their employee health plan is so mind-bogglingly stupid that I'm impressed that anyone who came up with this hasn't already choked to death on his necktie.

Hagar said...

For racial discrimination, and other such things, there are the Civil Rights Amendments.

However, I cannot remember ever hearing anyone claim that those could be stretched to cover birth control in any way whatsoever.

Shanna said...

It still doesn't address why, of all medications, contraceptives must be "free" for women. If a woman needs some form of heart medicine to stay alive, she has to pay a copay. Why must contraceptives be "free", especially when they're so inexpensive.

It really is weird. Why not cancer medications? Why not cold medicine? Why not literally any other medication that exists?

YoungHegelian said...

For completely different take on what passes muster as being acceptable under freedom of religious conscience, there's this.

damikesc said...

No they're not. Just because you, and the owners of Hobby Lobby, believe it is true, doesn't make it so.

Does it matter?

Isn't the SCOTUS decision the final word and critics should just shut up?

Didn't Progs constantly say "IT'S THE LAW!" when the SCOTUS permitted ACA to become law (even though Obama STILL doesn't follow the law)?

Well, same here.

Shut up. It's the law. Stop your belly-aching and whining.

And, conservatives, please note how much Progs are fond of precedent when it goes against their whims.

tim in vermont said...

Does anybody really think Freddy believes the stuff he writes?

Isn't it more like he is hoping that other people will believe him without thinking for themselves?

Or is the consensus that he is not deliberately misunderstanding, but honestly not very bright?

I go with the last one, and I think he suspects it, ,which is why he needs a political party that constantly reassures him that his is "smart" and everyone else is "stupid."

He obviously has no way to judge for himself.

damikesc said...

So, including it would have been a red flag for pro-life Dems, whose votes were necessary for passage.

...but let's be honest, sell out morons like Stupak would've voted for it regardless.

John Constantius said...

To expand on my previous point, it is not the Supreme Court's job to prevent horrible consequences. If the law, as written, results in horrible consequences, then the court should accept that. If people don't like those consequences then they should ask Congress to change the law.

Which was pretty much the Court's argument in upholding Obamacare. If I interpret that ruling correctly, the Court basically said that it's clear the government has the ability to enact Obamacare under its taxing power (both sides agreed this was the case). If the American people were naive, gullible or stupid enough to believe the Democrats' sales job that Obamacare wasn't a tax, that wasn't the Court's problem. It is not the Court's job to protect the people from con man politicians -- the people need to protect themselves by not electing people who lie to them.

I'm a big opponent of Obamacare but in my view the Court was absolutely right. The Court's job is to uphold the Constitution, not protect the people from a Congress that tells the public it isn't imposing a tax even while it imposes a tax.

Gene said...

I don't know why women don't pay for their own contraception without complaining that they are owed free contraception as a human right. I always paid for my own condoms. I never blamed anyone else or tried to argue that it was their duty to provide condoms free to me.

Team Unsafe said...

Prof. Althouse,

With respect to the hypothetical you present in the second half of this post - I may have overly high standards, but I expect a law professor to know there is not currently a federal law barring employment discrimination on the basis of sexual orientation.

David said...

"Those who don't like what did happen in Hobby Lobby have an incentive to portray it as portending horrible consequences that, in fact, the Court took pains to foreclose."

So the dissenters are rabble rousing fools? Not very comforting, is it?

Freder Frederson said...

If you're claiming that they don't, in fact, prevent the implantation of a fertilized egg, then you need to get out of the left wing hothouse and come join the real world.


And you need to brush up on the medically and legally accepted definition of conception:

"Although widespread, definitions that seek to establish fertilization as the beginning of pregnancy go against the long-standing view of the medical profession and decades of federal policy, articulated as recently as during the Bush administration. In fact, medical experts—notably the American College of Obstetricians and Gynecologists (ACOG)—agree that the establishment of a pregnancy takes several days and is not completed until a fertilized egg is implanted in the lining of the woman's uterus. (In fact, according to ACOG, the term "conception" properly means implantation.) A pregnancy is considered to be established only when the process of implantation is complete "

Freder Frederson said...

Either men don't get special care, or men are the adults.

Actually they do. Prostate screening is included.

Sigivald said...

Also, change of topic -

I've been seeing, going around Facebook Progressives, the meme that "there is no contraceptive mandate because really there's no law saying you have to give employees insurance".

So I guess the idea that a penalty put into the tax code by legislation is just different.

"Because shut up", I suppose.

Baffling.

tim in vermont said...

"In fact, according to ACOG, the term 'conception' properly means implantation"

Ohhh kaaaaay.

Look I support the right to in utero infanticide, I don't like it, but I think the alternatives are worse, but I don't pretend that what is happening is not the taking of a human life by jiggering definitions.

Talk about a slippery slope!

Alex said...

This is about Hobby Lobby's CEO being a Christian Fundie and disapproving of recreational sex.

Michael said...

Freder F

But prostate drugs are not! Why not? Why do I have to pay for my prostate drugs?

I get a free exam. So what? I am prescribed Flomax and I have to pay for it myself? What is fair about that
.

Bruce Hayden said...

And you need to brush up on the medically and legally accepted definition of conception:

As I said before, that is totally and completely irrelevant. What matters is what the plaintiffs believe, and whether the courts believe that they are genuine in their belief. What is irrelevant is what those "experts" believe. And, the plaintiffs believe that life starts at fertilization, not implantation, and consider any birth control after fertilization to be abortion. And, as I noted earlier, the Supreme Court uses the word "abortifacient" to describe the four methods of birth control objected to by HL and the other plaintiffs.

Pianoman said...

Based on the comments of my lefty theater friends on Facebook, you'd think Reconstruction was about to be repealed.

I've seen calls for people to burn Hobby Lobby stores to the ground, and replace them with homeless shelters. And of course the predictable shrieks for boycotting. (As if the Left was in the habit of visiting Hobby Lobby in the first place.)

Chick-Fil-A went through this same ordeal, and came out fine on the other side. It's Hobby Lobby's turn to be Emmanuel Goldstein for a day.

"Some days you're the pigeon, and some days you're the statue."

Unknown said...

Excellent blog entry, Ann. As clear as any I've read on the decision over the past two days.

Chuck said...

About ACOG's pronouncement(s) on conception...

It is portrayed as somehow settled "science," to have ACOG deciding what does and does not qualify as an abortifacient.

We should not be too quick to accept what ACOG says, as long as ACOG remains a devoutly political, pro-abortion activist group.

Look, all of the Democratic trial laywers don't like it when ACOG makes pronouncements on things like the birth trauma litigation that supports so many of their colleagues.

Interested professional groups don't get to determine all politicial issues in which they might have a rooting interest.

If we left tort reform up to the lawyers alone, none of it would have passed. Of course it wouldn't, because trial lawyers -- plaintiff and defense lawyers alike -- don't want legislation cutting into their business.

And so it goes with the business of abortion and birth control. ACOG (understandably, perhaps, but hardly credibly) doesn't want legislation interfering with their business.

I'm perfectly happy to hear about science as proven by ACOG members. They've done a good job of it, in fact, on the matter of electronic fetal monitoring and so-called perinatal asphyxia. But if ACOG is simply substituting its own rhetorical definition of conception for a religious group's definition of conception, then that hardly counts as medical science.

Ann Althouse said...

"With respect to the hypothetical you present in the second half of this post - I may have overly high standards, but I expect a law professor to know there is not currently a federal law barring employment discrimination on the basis of sexual orientation."

I'm looking ahead to one of the possibilities of what Congress may want to do soon. It's one of the things people who worry about the effects of Hobby Lobby worry about.

gregq said...

damikesc said...

So, including it would have been a red flag for pro-life Dems, whose votes were necessary for passage.

...but let's be honest, sell out morons like Stupak would've voted for it regardless.


Most likely true, which makes it all rather funny, no?

gregq said...

Freder Frederson said...

..In fact, medical experts—notably the American College of Obstetricians and Gynecologists (ACOG)—agree that the establishment of a pregnancy takes several days and is not completed until a fertilized egg is implanted in the lining of the woman's uterus. (In fact, according to ACOG, the term "conception" properly means implantation.) A pregnancy is considered to be established only when the process of implantation is complete "

Assuming all that's true, so what?

First of all, that would require one to claim that in-vitro fertilizations haven't been "conceived" unitl long after you have a dividing, growning, human being. Bzzt.

Second, RFRA is utterly unconcered with the claims of "experts". All that matters is the "sincerely held religious beliefs" of the plaintiffs. They think it's killing a human being. So for them, and for RFRA, it is.

Don't like it? bitch at Ted Kennedy and Bill Clinton.

Woo who? said...

The do nothing Congress will do just that....nothing.

n.n said...

Alex:

No, this is about sex with responsibility. Specifically, the recognition that human life evolves from conception to death.

The commission of abortion/murder is a gross human rights violation. It is a crime committed against an individual, society, and humanity.

It should come as no surprise that not everyone plans a final solution... for money, sex, ego, convenience, and, of course, to reduce the problem set (i.e. population control). This is both a logical and moral issue for all people who recognize merit in human life and the self-evident process by which it/we develops.

n.n said...

Freder Frederson:

Conception does not occur at implantation. Conception is the event which marks the beginning of human evolution. While a failed implementation can result in death, preventing implementation is an act of premeditated murder (i.e. willful and premature termination of a human life cycle). The only legal and moral justification for commission of murder is self-defense. Not money, sex, ego, convenience, etc.

PBandJ_LeDouanier said...

I didn't read one page. I'm not a lawyer. And, yet I have a better handle on this opinion than Althouse does.

These dudes (and Rush) think that birth control is for sluts. The bible told them so. This means that Christian corporations can't be funding such whoring about otherwise they'll end up in hell, with all the other sinful companies. The other Supreme, Jesus, gets very angry when he hears that birth control is available to employees. And, since traditional Christian values are essential for capitalism to work, the Supremes must help to keep women away from birth control, it's for their own good. Duh!




stlcdr said...

That's a tough read, but unfortunately I just cannot get over the phrase 'compelling state interest'.

While it has a legal connotation, it just seems that the the state is an outside entity that has demands outside, and independent of, of the people it is supposed to represent.

Jon Burack said...

Very entertaining.

https://www.youtube.com/watch?v=SxQF7olTrzw#t=36

"There are some beliefs so heinous that government should not respect them, no way, no how. Apartheid in South Africa was justified on religious grounds. The Southern Baptist Convention justified slavery and later Jim crow segregation on religious grounds. We no longer accept that as a society any more, and we should not accept plain out gender bigotry." - Terry O'Neill, NOW

My only question is, if something so trivial as this very narrowly targeted SCOTUS decision can provoke maximum decibel hysteria from liberals, as it clearly has, what decibel level is left if they ever have something moderately serious to alert the world to?

President-Mom-Jeans said...

No Crack demanding reparations on a post mentioning race?

Did he die, or did his Obamaphone he posts from get cut off?

tim in vermont said...

"I didn't read one page. I'm not a lawyer. And, yet I have a better handle on this opinion than Althouse does.

These dudes (and Rush) think that birth control is for sluts. The bible told them so."

See that is good persuasive writing, he starts out with a proposition, that he, the writer, is an idiot, then he provided evidence to support this proposition.

I wish all Lefties wrote this well.

PBandJ_LeDouanier said...

"he starts out with a proposition, that he, the writer, is an idiot"

How do we know he is not a she? Toll collectors can be gals too. OTOH, this sort of thread is probably destined to be a sausage fest. Mens does knows whats best for the little ladies.

Jeremy Bruskotter said...

Okay, yes, the Court did not provide carte blanche for overt discrimination, but that isn't the problem that most folks have with the ruling. Rather, the problem--a I understand it-- is that this opens the door to other religiously-inclined businesses refusing to pay for health care services that they find repugnant. Wasn't this the thrust of RGB's dissent?

Althouse writes:

"...it must justify that burden by showing that it is the least restrictive means of achieving a compelling governmental interest."

..."the compelling governmental interest is comprehensive preventive health care for women..."

"...and the majority said that requiring the employer to include coverage of all FDA-approved contraceptives in its health care plan was not the least restrictive way to to serve that interest."

I'm not convinced that the compelling governmental interest here is "...preventive health care for women"? Or perhaps more appropriately, why should this interest be separated from the broader compelling interest--that is, providing health care for citizens?

The problem with the ruling--again, as I understand it-- is that another religious institution could come along and say, 'we find providing prescription drugs for psychological disorders repugnant' (or insert any other claim). Hasn't the government also shown that there is a less restrictive means of providing prescription drugs for psychological disorders? Indeed, isn't the existence of the exchange (market) for individuals a less restrictive means of providing ALL of these health care services?

hawkeyedjb said...

All this vitriol over something brought about by the collision of a bunch of bad ideas:

-Employer-based health insurance, which makes no more sense than employer-based homeowners insurance

-Mandated 'insurance' coverage for normal, predictable and not very expensive purchases


We had a once-in-a-lifetime chance to break the link between employment and insurance, and instead we made it even worse with the employer mandate. That, and the micro-managing of benefits, has led to the present result. All perfectly avoidable. So much caterwauling over something that should be handled by leaving government and employers out of it.

Ignorance is Bliss said...

Jeremy Bruskotter said...

The problem with the ruling--again, as I understand it-- is that another religious institution could come along and say, 'we find providing prescription drugs for psychological disorders repugnant' (or insert any other claim). Hasn't the government also shown that there is a less restrictive means of providing prescription drugs for psychological disorders? Indeed, isn't the existence of the exchange (market) for individuals a less restrictive means of providing ALL of these health care services?

In what way is any of that a problem with the ruling?

Jeremy Bruskotter said...

Okay, how about other sorts of discrimination?

"The day after the Supreme Court's Hobby Lobby ruling, a group of religious leaders sent a letter to President Barack Obama asking that he exempt them from a forthcoming executive order that would prohibit federal contractors from discriminating against LGBT people."

And Alito wrote, "...and should not be understood to hold that all insurance-coverage mandates...Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice."

Hmm... perhaps the raucous left that so many here seem to disdain have a point?

http://talkingpointsmemo.com/livewire/religious-groups-lgbt-hiring-hobby-lobby

Jason said...

Jeremy: Are LGBT a protected class under federal law? Yes or no.

Ignorance is Bliss said...

Jeremy

Did you read the post you are commenting on? This is exactly the example that the professor schredded. If you disagree with the professor's analysis explain your disagreement. Otherwise, why just repost someone else's already debunked talking point?

Jeremy Bruskotter said...

IiB asks: In what way is any of that a problem with the ruling?

The problem is that the majority insists that this ruling should be read very narrowly: "This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates..." Yet their insistence is contradicted by the logic, which suggests the ruling could be applied more broadly. And if it isn't applied more broadly [than the contraceptive mandate], what principle of law is being articulated?

Ignorance is Bliss said...

Jeremy Bruskotter said...

Okay, how about other sorts of discrimination?

Other? Other than what? What form of discrimination do you think you had already brought up?

Ignorance is Bliss said...

The principal is that the RFRA is the law of the land and the executive branch is bound by it. The RFRA, as written, pretty much requires analysis on a case-by-case basis. That is not a problem with this ruling, it is a feature ( or bug ) of the law.

Jeremy Bruskotter said...

IiB: Okay, two separate issues:

(1) One of the premises of the post (and many subsequent comments) is that, and I'll paraphrase, 'liberals are overacting with hyperbole because the Court took pains to rule narrowly'. The piece I cited was in response to this -- apparently roughly 24 hours from the announcement of the ruling, it is now already being cited by religious conservatives as justification for discriminating against gays. (The New Yorker has a piece suggesting this is a trend with the Roberts' Court's "narrow rulings". (see: http://www.newyorker.com/online/blogs/newsdesk/2014/06/hobby-lobby-the-supreme-courts-narrow-decisions.html)

----

(2) "The RFRA, as written, pretty much requires analysis on a case-by-case basis. That is not a problem with this ruling, it is a feature ( or bug ) of the law."

Okay, great. Now we're getting somewhere. So, it's a matter of semantics, but then you might say the problem with the ruling is it reveals the 'bug' in the law, fair?

Returning to my original post, perhaps a reframing will help: the broader compelling societal interest served by the law--the ACA was the promotion of public health. The court apparently suggests the one particular 'sub-interest' preventative health care for women (or contraception for women) can be separated from the broader societal interest served by the law. [Note here that one of the reasons contraception for is included is the recommendation of medical professionals.]

So pairing this issue with the 'bug' you articulated suggests that despite the majority's assertions, every type of medical practice that any religiously-oriented business finds objectionable requires a 'case-by-case' analysis. And doesn't the the existence of the individual mandate indicate that there will always be a less restrictive means of promoting the public's interest in health (i.e., require individual to buy his own insurance)?

P.S. Apologies for the post at 7/2/14, 4:12 PM -- I let myself get caught in the ideological drivel, which apparently proved to be a distraction. I'm simply trying to understand the full scope of this ruling.

Ignorance is Bliss said...

Jeremy-

In response to your points:

(1) The professor explains, in this very post ( have you read it yet? ) that, based on the reasoning of this very ruling the RFRA won't exempt you from a non-discrimination law. If people on the right are trying to use it that way, then complain about them, not the ruling.

(2)So, it's a matter of semantics, but then you might say the problem with the ruling is it reveals the 'bug' in the law, fair?

I don't think that is a fair thing to say at all. If there is a problem with the law then it is a good thing for the court to make that clear.

And doesn't the the existence of the individual mandate indicate that there will always be a less restrictive means of promoting the public's interest in health (i.e., require individual to buy his own insurance)?

I would say that is likely. ( at least for promotion of health through insurance coverage. It would likely fail for a mandate to get kids vaccinated. ) However, that was not decided by this case. For this case, it was enough for the court to note that the government itself already found a less restrictive means for contraceptives: it offered such an alternative to religious non-profits.

That is why the court ruled narrowly, on just the contraceptive case. Will the same logic apply to other cases? Of course. But those cases will have to be argued in court, based on their merits. That is due to the RFRA, not due to this ruling.

And even if it applies to every required coverage in the insurance mandate, that's still, in terms of the Supreme Court, a very narrow ruling. ( applying to one category of regulation in a single law. )

Kirk Parker said...

Althouse,

"Historically, in response to foolish, unwarranted, and arguably unconstitutional federal-government intrusion into the job marketplace businesses have included health insurance as part of the pay package"

FIFY.