Much has been written about the Hobby Lobby (HL) decision. It ahs been pilloried as an attack on women's rights, a limiting of contraceptive rights for women, a blow against big government, bad science, etc. It has been warned to be a prelude to Jehovah's Witness companies refusing to cover blood transfusion, or allowing killings in the name of religion. Everything I've read, right and left, has been hyperbole for effect, paranoia, political crowing. A very few reviews have been more serious.
HL represents the intersection of religious liberty, guaranteed by the Constitution, and governmental authority under a law, the ACA. The fundamental issue is the power and reach of government. Left and right, America has ceded a great deal of power to the federal government over the last 110 years. Like all such power cessions the have been done with good intention or in great need. Nonetheless there has been a major shift in governmental authority, from states and individuals to central government. We permitted taxation of income (previously the central government got revenue only from import fees, port taxes, park fees and the like), federal level retirement support (SS/FICA), and healthcare for the elderly (Medicare), for the poor (Medicaid). Every one of these programs has occurred by constitutional amendment (taxation) or by law. The constitutional frame for these acts has been to promote the general welfare.
Except for taking money from individuals, none of these programs has compelled an individual to buy or do anything. Personal freedoms under the Bill of Rights have been maintained while expanding governmental rather than individual responsibility. Autonomy has been maintained. This is distinctly not true for the ACA. This law requires people to buy health insurance, or face a tax penalty. The constitutionality was upheld by construing the penalty as a tax rather than as a requirement to buy insurance. I will return to the framework for that decision in a minute.
The ACA made several exceptions for religious liberty- non-profits, church-run businesses, nuns and monks. It made no corporate exceptions. HL sued, claiming the contraception mandate violated their Christian beliefs. SCOTUS agreed, allowing exemption for closely held private corporations whose holders' beliefs are expressed in their everyday work. Closely held means, by court definition, 5 or fewer owners. If you read the decision, which is readily available on line, almost all commentary on it is just posturing.
First, there is absolutely no chance of any of the doomsday problems coming true. The HL decision allows funding of contraception through federal payment (a dilution of responsibility), which would be the case for any other strong religious concern about health care choices. Second, there is no 'war on women', although it makes for great press. Contraception is available to women employed by HL, whether covered by HL or by federal programs. Third, HL has not limited women's options at all. Contraception, contrary to popular screeds, is available for free at health departments, Planned Parenthood and many hospital clinics.
The issue of 'personhood' for corporations has been raised. In both Citizens United and now in HL, SCOTUS has given broader legal rights for corporations to act as a body. They can now give unlimited political money and they can express the values of their creators, if closely held.
One may disagree with these ideas, but they seem remarkably consistent to me, and not legally wrongheaded. They are the corporate version of what America has given to the federal government. Further, the holding of the ACA as a tax and the HL case both represent a close parsing of law in cases where both sides wanted a 'win'. Conservatives did not get the ACA struck down, and liberals did not get a triumph of governmental authority over religious freedom. Both cases were resolved by a narrow construction of a specific point- the nature of an impost for the ACA and the limits under which values may be expressed by a corporation. Citizens United is similar to both of these. Since labor unions get to contribute politically without limit and without the consent of the members, SCOTUS gave the same ability to corporations.
The ACA is unique in requiring people to buy a service (as opposed to a physical item like a seatbelt), and also in that other required items are part of other devices, not a stand alone like health insurance. As a brand new concept and requirement it does not seem at all peculiar to me that its limits will be tested. This is the process of our laws, and also of our society. The ACA has already given rise to numerous suits defining its extent and legality. I am sure it will be subject to more as well as more Supreme Court clarifications.
Ted
HL represents the intersection of religious liberty, guaranteed by the Constitution, and governmental authority under a law, the ACA. The fundamental issue is the power and reach of government. Left and right, America has ceded a great deal of power to the federal government over the last 110 years. Like all such power cessions the have been done with good intention or in great need. Nonetheless there has been a major shift in governmental authority, from states and individuals to central government. We permitted taxation of income (previously the central government got revenue only from import fees, port taxes, park fees and the like), federal level retirement support (SS/FICA), and healthcare for the elderly (Medicare), for the poor (Medicaid). Every one of these programs has occurred by constitutional amendment (taxation) or by law. The constitutional frame for these acts has been to promote the general welfare.
Except for taking money from individuals, none of these programs has compelled an individual to buy or do anything. Personal freedoms under the Bill of Rights have been maintained while expanding governmental rather than individual responsibility. Autonomy has been maintained. This is distinctly not true for the ACA. This law requires people to buy health insurance, or face a tax penalty. The constitutionality was upheld by construing the penalty as a tax rather than as a requirement to buy insurance. I will return to the framework for that decision in a minute.
The ACA made several exceptions for religious liberty- non-profits, church-run businesses, nuns and monks. It made no corporate exceptions. HL sued, claiming the contraception mandate violated their Christian beliefs. SCOTUS agreed, allowing exemption for closely held private corporations whose holders' beliefs are expressed in their everyday work. Closely held means, by court definition, 5 or fewer owners. If you read the decision, which is readily available on line, almost all commentary on it is just posturing.
First, there is absolutely no chance of any of the doomsday problems coming true. The HL decision allows funding of contraception through federal payment (a dilution of responsibility), which would be the case for any other strong religious concern about health care choices. Second, there is no 'war on women', although it makes for great press. Contraception is available to women employed by HL, whether covered by HL or by federal programs. Third, HL has not limited women's options at all. Contraception, contrary to popular screeds, is available for free at health departments, Planned Parenthood and many hospital clinics.
The issue of 'personhood' for corporations has been raised. In both Citizens United and now in HL, SCOTUS has given broader legal rights for corporations to act as a body. They can now give unlimited political money and they can express the values of their creators, if closely held.
One may disagree with these ideas, but they seem remarkably consistent to me, and not legally wrongheaded. They are the corporate version of what America has given to the federal government. Further, the holding of the ACA as a tax and the HL case both represent a close parsing of law in cases where both sides wanted a 'win'. Conservatives did not get the ACA struck down, and liberals did not get a triumph of governmental authority over religious freedom. Both cases were resolved by a narrow construction of a specific point- the nature of an impost for the ACA and the limits under which values may be expressed by a corporation. Citizens United is similar to both of these. Since labor unions get to contribute politically without limit and without the consent of the members, SCOTUS gave the same ability to corporations.
The ACA is unique in requiring people to buy a service (as opposed to a physical item like a seatbelt), and also in that other required items are part of other devices, not a stand alone like health insurance. As a brand new concept and requirement it does not seem at all peculiar to me that its limits will be tested. This is the process of our laws, and also of our society. The ACA has already given rise to numerous suits defining its extent and legality. I am sure it will be subject to more as well as more Supreme Court clarifications.
Ted
An insightful commentary on both the ACA and HL decisions, one that is balanced and - amidst a sea of doomsday cries - calm.
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