Burwell v. Hobby Lobby and the Politics of Religion

Burwell v. Hobby Lobby and the Politics of Religion

On the last day of June, the U.S. Supreme Court once again attempted to negotiate the briar patch of the politics of religion without getting stuck. In the view of four justices, however, their effort failed. First, what the majority decided.

Burwell et al. v Hobby Lobby Stores, Inc. et al. (which also incorporated Conestoga Wood Specialties Corp. et al. v. Burwell) involved two closely held corporations whose owners and senior company executives chose to bring their faith and the moral values it inspires into their company board rooms. These values include strong convictions about the beginning of life, leading to firm opposition to abortion.

Because they are for-profit corporations with a significant number of employees, they are not exempt from the provisions of the Affordable Care Act requiring, among other things, that they provide health insurance coverage to their employees and that this coverage include coverage of all FDA-approved forms of contraception.

Four of these FDA-approved methods (two so-called “morning after pills” and two intrauterine devices) may not, in fact, be contra-ceptive. That is, they may not prevent conception; they may work to prevent a fertilized egg from advancing successfully along the path of pregnancy. Put succinctly, some would say that these methods abort pregnancies, rather than preventing them.

Entirely legal, of course, and, according to the FDA, “safe.”

But for the owners of Hobby Lobby and Conestoga Wood Specialties, their use is an immoral taking of an innocent human life. As the syllabus of the majority opinion notes, the owners’ participation, not in procuring an abortion itself, but in facilitating access to that choice for their employees, “implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.”

The owners of these companies are being required to provide health insurance coverage. Providing health insurance is an innocent act in itself; indeed, it may well be morally praiseworthy. But the specific requirements of the law compel them to provide their employees with free access to what the owners understand to be methods of abortion. Even if these owners never encourage any employee to have an abortion and never choose it for themselves or their loved ones, providing this coverage makes it easier for their employees to choose abortion as an option.  This puts the company and its owners in the position of facilitating unjust killing, as they understand the matter. Such a facilitative role, the owners concluded, would be immoral.

The majority opinion, without opining on the merits of these religious convictions, recognized that they were sincerely held, that the logic that led from belief to action was not flawed, and that, even though these are “corporations,” they are “persons” for purposes of the protections provided for the free exercise of religion under the Religious Freedom Restoration Act of 1993 (signed by then-President Bill Clinton) and the Religious Land Use and Institutionalized Persons Act of 2000 (also signed by then-President Clinton). These particular corporate “persons,” while established for the purpose of profit, also have maintained their purpose of operating in accordance with the religious values of their principals, and, consequently, have “exercised” religious preferences and cannot be unreasonably compelled to abandon them.

Importantly, the ruling does not repudiate the Affordable Care Act itself; what has been rejected is a rule promulgated by the Department of Health and Human Services to implement the act. The ruling also does not reject the notion that contraceptive care, including these four contested methods, is consistent with the pursuit of a compelling state interest. Indeed, it appears that all of the justices accept that assertion.

The issue at law on which the majority opinion hinges, once it established that a closely-held corporation is a “person” in the terms of the relevant laws, is whether the rule requiring these companies to include these four contested forms of contraception imposes the least practical burden on the exercise of religious freedom in pursuit of the compelling state interest. On that question, the majority found that other methods could be devised (and at least one already exists) by which the government could ensure that the compelling state interest was protected without burdening the companies’ religious freedom at all.

Already, activists and politicians are celebrating the decision as a victory for religious liberty and condemning it as one that “jeopardizes the health of women.”  That’s to be expected . . .

Next: The Concerns of Dissenters in Burwell v Hobby Lobby

5 Responses to Burwell v. Hobby Lobby and the Politics of Religion

  • Richard L. Block

    What bothers me is what the other four justices were thinking. Evidently they are of the opinion that a woman’s right to birth control pills and abortion pills are necessary to maintain their good health. Since when in the history of mankind is pregnancy a disease? More importantly, by their dissenting opinion they trumped the First Amendment of the Constitution by placing this phony logic above our constitution rights. Push back time has arrived.

  • Kate's Daughter

    I don’t think they were thinking, Richard. Hobby Lobby has been exposed as contributing investment funds to contraceptive manufacturers, including those that produce the so named, morning after pill. This company also does not find allowing access to Viagra and vasectomies to be in opposition to their religious views.

    Clearly, time not only for pushback but for a single payor source of national health insurance. Remove the insuring responsibility from the employer and place it squarely on the government.

    Keep religion out of health care.

    • Dr. Scott Paine

      The information I found on line from mainstream media (see, for example, notes that Hobby Lobby’s retirement funds for its workers are or have been invested in mutual funds that have included and may include some of these pharmaceutical companies in their portfolios. That makes the claim you made correct, Kate’s Daughter, but it also merits clarification. Hobby Lobby’s executives did not necessarily choose to invest in these pharmaceutical companies; many of these mutual funds are ‘actively managed’, meaning that what is held varies with the judgment of the fund manager (someone who works for the investment firm, not Hobby Lobby). One also might argue that there is only limited support for any of these particular methods in investing in the firm that makes them (given that they also make many other things), as opposed to the direct support for what the Hobby Lobby execs understand as abortion that was required of them under the law.

      The revelation may have come as a surprise to Hobby Lobby execs, too, as such revelations often do for mutual fund investors. Maybe not; maybe they are hypocrites. But the evidence presented about how their 401K for their employees is invested may reveal something many investors face, namely the difficulty of making prudent investments financially that also meet a rigorous moral code.

    • Dr. Scott Paine

      I should note, too, that the position taken by the Hobby Lobby execs is not inconsistent with regard to the specific coverages objected to and accepted, given the understanding they embrace about how these methods of contraception work. The executives do not find sexual relations to be immoral (so medications like Viagra do not offend their moral standards) nor do they find preventing pregnancy by preventing the fertilization of the egg, regardless of the method employed to do so, to be immoral (so vasectomies, and also tubal ligations, as well as a wide range of contraceptive medications and physical methods, do not offend their standards).

      One may argue with their understanding of how things work or what things mean (I’ll be writing about that next week), but if one simply takes their argument at face value, it is not inconsistent or hypocritical. Such a charge, consequently, requires better evidence to be sustainable.

  • […] Earlier this week, I wrote about the majority opinion in the U.S. Supreme Court’s Hobby Lobby case.   The five-member majority found that closely held for-profit corporations such as Hobby Lobby qualify as  “persons” for the purposes of two relatively recent federal acts having to do with religious freedom (both signed into law by then-President Bill Clinton). […]