Skip to main content

Hobby Lobby Comments

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

Comments

  1. An insightful commentary on both the ACA and HL decisions, one that is balanced and - amidst a sea of doomsday cries - calm.

    -D-

    ReplyDelete

Post a Comment

Popular posts from this blog

What is Forgiveness

 In doing years of medical teaching, I have told students that teaching and learning are not directly related. I can teach and teach, but you may never learn. Conversely, you may learn continuously without me teaching you a thing. 'I teach' and 'you learn' are two separate, active processes that may overlap or coincide. The same is true of forgiveness. I am an unforgiving man. I am the very opposite of God, who is slow to anger and of great kindness. I am quick to anger and very slow to forgive. I'm kind and insightful with people generally, but when mistreated or insulted I am not kind at all, nor do I forget, or forgive.  The Bible tells us to do something else. We are told to forgive. In Matthew 18:21, Peter asks Jesus how often he should forgive his brother's sin. The Jewish standard was three times. Like the young man in the story of the Samaritan, who asks who his brother is in order to know to whom he should be loving, Peter appears to be asking for guida...

My Broken Tooth

 I broke a tooth today. I've done that before; I inherited my mother's horrible teeth, and if not for crowns I would have the smile of any drug-addicted homeless man in the street. But the tooth broke, rather than the crown coming off. I've had that happen a couple of times, and it's nothing. After all, the tooth is just fake, held on by cements similar to the ones I use for my models. This time, however, I have to have the root extracted so I can get the modern version of a bridge. And this new dental experience has reduced to me to jelly, this not helped by the condescending, sexist comments of the dental assistant. I have a long, longe memory, my first recollections coming from age 2. I have well-developed, detailed memories from age 3 onward. I vividly recall being at the dentiswt as a child, when it was fashionable to fill baby teeth. I can recall being left there by my mother as a 14 year old, on the day I was paid for working as 'the 5th ace' at Camp Maga...

Politically Correct Dishonor

The Biblical prophets warned aloud that devastation would come to those who were unclean. Those that profaned God and the house of God, those who were drunken, fornicators, idolators, those that cheated, that gave unclean offerings. Israel was warned of the consequences of their behavior. And God did not punish Israel. Rather, by walking away from God, Israel simply suffered the consequences of its behavior and choices. I chose, I chose , to live, to receive a transplant. I struggled to have the surgery that prolonged my life, I accepted the gift of a kidney from a whole person that I might live. I was convinced by family and friends that I had some role in the world, something I might contribute. And I believed that. My idea of contribution was to teach, to give to others what I had learned to do. But I have lived to see injustice. To see self-interest and greed triumph over not merely right but reason as well. I see incompetence passed off as expertise, the mundane as the s...