The owners of the arts and crafts chain Hobby Lobby have a right to their religious beliefs. So do their 28,000 employees. And the citizens of the United States also have a right to a government that protects their health and welfare.
Yet these interests don't necessarily align, and it's now up to the U.S. Supreme Court to sort out which rights take precedence. The justices are scheduled to hear arguments in two cases Tuesday (one involving Hobby Lobby, the other a Pennsylvania-based kitchen cabinet maker) that center on the Affordable Care Act and women's access to contraception.
The decision turns not just on the First Amendment and the freedom of religion but on a law: the Religious Freedom Restoration Act of 1993, which prohibits government from substantially burdening an individual's exercise of religion unless there is a "compelling" government interest. The owners of Hobby Lobby and Conestoga Wood Specialties Corp. argue that paying for health insurance that covers certain contraceptives that can "end human life after conception" — including IUDs and emergency birth control like Plan B — violates their faith.
The case has drawn mixed results in the lower courts, but it shouldn't have. That a private, for-profit company might pick and choose what health insurance regulations to follow or not follow is a disaster in the making. And that's particularly true when the arguments put forth by the companies run so far afoul of reality.
Nothing in the Affordable Care Act compels a single employee of Hobby Lobby, Conestoga or any other person to use any form of contraception. It merely makes that option more available to them by no longer requiring women to pay for contraception entirely out-of-pocket. And none of these contraceptives terminate a pregnancy in the scientific sense, which is said to occur after a fertilized egg implants in the uterine lining; they prevent them. Abortion is simply not covered by the ACA.
The compelling government interest is obvious. The more women use appropriate contraceptives, the less likely they are to have unwanted pregnancies. And making unwanted pregnancy less likely is critically important to reducing poverty, child abuse and many other bad outcomes for society. It's also certain to reduce the number of abortions performed in the U.S. which for some odd reason doesn't seem to mean much to the Green family, Hobby Lobby's owner, or others so anxious to restrict women's reproductive rights.
Corporations are not people, and both the First Amendment and the Religious Freedom Restoration Act are designed to protect the rights of human beings, not profit-making companies. But even if one embraces the peculiar corporations-as-people philosophy the Supreme Court discovered in the Citizens United case that has left campaign finance laws in such disarray, the burden the ACA places on Hobby Lobby's religious beliefs seems tangential at best, while denying women access to contraceptives would have a profound and negative impact on their employees and the rest of us as well.
There is no workable alternative to spare Hobby Lobby (aside from refusing to provide employees health insurance coverage generally). Government can't swoop in and provide the same contraceptive benefit to the women whom Hobby Lobby would deny. And even if it could, Republicans in Congress would make sure that didn't happen as they, too, have shown little interest in standing up for women's reproductive rights and certainly not for using taxpayer dollars to do so.
Worse yet, the precedent set by a Supreme Court ruling that comes down on the side of Hobby Lobby could be used to discriminate against actual human beings in many other areas. What would prevent a company, for instance, from deciding its religious beliefs extend to gay rights and that it can refuse to serve same-sex couples? Others might decide vaccinations are against religious beliefs and so are HIV-related medications, or perhaps psychiatric care will be seen as a violation of a company's faith. All are possible, even likely.
This is a road the United States should not go down. After all, Hobby Lobby is already paying for contraceptives and probably abortions, too. It does it through an employee benefit called a "salary." Wages, like health insurance, leave it up to the workers to decide whether to use that benefit and what choices to make in life.
It's unfortunate that the Affordable Care Act has become such a lightning rod for conservatives and religious groups because that antipathy seems to have fueled this crusade to defeat one element of it. Otherwise, those who are so bent on imposing their religious beliefs on others would recognize the double-edged sword of what they are attempting to do.
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