Oh, U.S. Supreme Court. You were doing so good for a while there. I felt like you were on a real hot-streak, what with that 9-0 ruling against Police searching our smart-phones without a warrant, or the 5-4 decision that it really is illegal to lie on federal firearm transfer paperwork.
It was like an explosion of reasonableness was about to blow up all in our faces.
Thankfully, that threat was avoided today with the Hobby Lobby case, (incidentally, if you don’t follow scotusblog.com, you really should). In a 5-4 decision in which all three of the female members of the court dissented, surprising no one, the highest court in the land ruled that a private corporation has the right to deny healthcare benefits to its employees on religious grounds. Specifically, birth control.
The argument being made by the plaintiffs, in this case the Green family who owns Hobby Lobby, is that it is morally superior and righteous to cover an employee’s unintended pregnancy, as well as the potential of a lifetime of welfare benefits for both mother and child through taxes, than to simply allow women to decide when is the best time to get pregnant.
Maybe that’s not what they had in mind, but that’s the real-world consequences, folks.
Almost unfathomably, the Court agreed. There’s one way which this ruling is very troubling, even ignoring the obvious implications it has for the future of women’s health and reproductive choices.
It expands on the patently ridiculous assertion, first introduced in the now infamous Citizen’s United decision, that corporations are themselves people, and deserve all of the Constitutional rights to free speech afforded to, you know, actual fucking human beings. But the Hobby Lobby case takes it a step further to say that not only do corporations have free speech rights under the 1st Amendment, but rights of religious freedom as well.
This is, to say the least, a new concept in our legal history. And one with no obvious endpoint. The court had found previously that non-profit organizations, or even for-profit companies which served a very targeted religious community, were exempted from the birth control mandate of the ACA. For example, a private Catholic school, or a Christian bookstore, or God forbid a Christian rock festival, could file for an exemption from the requirement on grounds of religious freedom.
I already had some problem with that, as many hospitals are Catholic or another denomination and are, at least on paper, non-profit organizations. When you have only one hospital in a hundred mile radius, you don’t really have a choice where you’re going to get your healthcare. But, as compromises went, it wasn’t all that bad really, so I was willing to sweep that one under the rug.
The Hobby Lobby case, however, is anything but a reasonable compromise. Hobby Lobby does not either employ or sell to a specific religious community. It is not an expressly Christian company or organization. It shares much with say, Chick-fil-A, a company that serves, employs, and profits from a diverse public, yet wants to impose their own version of morality onto their employees.
This is unacceptable in a secular, pluralistic society such as ours.
The Court, sensing the potential for their decision to drive right off the edge of a cliff, included several caveats to try and reign-in the scope of the damage this could cause. First, they held that the decision was limited to only “closely-held” corporations, the mom-and-pop stores of the capitalist system, as opposed to large, publicly traded companies that you or I could buy stock in such as Coke, Boeing, or GE. So apparently, corporations are people, but not all corporations deserve religious liberty. Do you see how tenuous this argument is?
The problem is compounded when you realize that around ninety percent of all the corporations in the U.S. fall under this “closely-held” designation. And while that’s not the same as saying that they also provide ninety percent of employment, it should still give us all pause. Hobby Lobby itself, while not publicly traded, still runs more than five-hundred stores across the country with around 18,000 employees. This is not some indie bookstore or gluten-free cupcake bakery, okay? This is a mid-size company that effects the lives of tens of thousands of people.
The second way SCOTUS tried to corral the impact of this decision was by saying that the ruling “narrowly applies” to only the birth control mandate, and should not be used as precedent in other cases. This is basically an admission that they realized how tortured the logic here really was, and therefore it shouldn’t be used again. It’s the SCOTUS equivalent of ending an argument with your children with “Because I said so, that’s why!”
The problem is, lower courts have a devil of a time actually following that advice. No matter whether the Supremes want their decision to carry any weight outside the argument over birth control, lawyers on both sides of many issues are at this very moment drafting up briefs that will use it. That’s just how this stuff works, guys. When the nation’s anti-sodomy laws were overturned in Lawrence vs. Texas, Justice Scalia predicted in his dissent that the eventual and unavoidable result of the court’s logic would be the legalization of same sex marriage. Eleven years later and gay-marriage opponents have lost in case after case based largely on the precedent set in that landmark decision and those that followed.
Now, obviously social progressives, as well as conservatives like myself who aren’t assholes, see this as a positive development. But while precedent worked for us there, it could very easily work against us here.
Forget about birth control for a minute. What happens when a corporation owned by Jehovah’s Witnesses decides to deny coverage for blood transfusions? What happens when a corporation owned by Scientologists decides to deny coverage for psychological counseling and psychiatric medication? What happens when a corporation owned by Christian Scientists decides to deny coverage for… well pretty much all modern medicine?
Of course it sounds crazy, as well it should. However, if you accept the logic that corporations are people and have the same rights to religious liberty as any individual, what is materially different about these scenarios that would justify a different ruling?
The fact that everyone can agree that denying someone coverage for a blood transfusion on religious grounds is fuckin’ nuts, but can’t agree on birth control, isn’t because they are categorically different things. Both can be life-saving treatments. The only difference is the modern right-wing obsession with all things related to female sexuality and birth control. Hobby Lobby isn’t trying to deny coverage for vasectomies, for example.
And that’s where you’ll find the double-standard. But SCOTUS is supposed to be the place where such inequities are stripped naked through the relentless application of logic and discarded. That’s its whole job. That’s why Justices are not elected, so as to be separate from the passions of the electorate.
So, seriously SCOTUS. What the fuck?
There are many people today saying that the Hobby Lobby case is no problem at all, because no one is being forced to work there. They can always choose to work somewhere else. Well, that may be true to a degree, by the reality we face today is that there is one job opening for every three job applicants. And as long as that’s true, there will be many people who don’t have the opportunity to pick and choose where they work, because they simply have to take ANY job available. And there are many, many people battling chronic conditions for whom healthcare coverage is not a perk, but a matter of survival.
In the ten plus years I sold health insurance, I saw people battling complex health problems that required tens of thousands of dollars per month to manage. Health insurance wasn’t a luxury for them. Without it, they either fell into poverty and onto government assistance, or simply died. So please, explain to me why someone should have to chose between a job that might interfere with their healthcare options, or become yet another welfare recipient or a corpse. Still haven’t heard a good “Christian” response to that question.
If anything, I think this is just another reason that our society should be pushing harder to decouple healthcare coverage from employment. Our health should not be held hostage by our jobs. Now, whether that change should take the form of further changes to the Individual market along the lines pioneered by the ACA, or through a single-payer system is a debate I would welcome between conservatives and liberals alike. But like so many other issues facing our country, it’s time to stop pretending there isn’t a problem.