From Justice Ruth Bader Ginsburg’s (blistering) dissent to the Supreme Court’s ruling allowing certain employers to violate the law by not providing contraception as part of their health insurance:
Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.
The court, I fear, has ventured into a minefield.
Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]… Not much help there for the lower courts bound by today’s decision.
The Moonmont Chronicle imagines how this might end:
Supreme Court Rules JCPenney Allowed to Sacrifice Employees to Appease Cthulhu
Citing the newly-established precedent of corporate-religious exemption, the U.S. Supreme Court ruled Tuesday in favor of JCPenney, upholding the company’s right to sacrifice pure-hearted employees in order to assuage the Dread Lord Cthulhu, Bringer of Madness.
“Our discomfort with the beliefs and practices of their faith must not supersede their religious freedoms,” Justice Scalia wrote in the majority ruling. “By upholding corporate rights, we protect the rights of the individuals who compose the corporation, at the mere cost of a bi-weekly ritual sacrifice of the still-beating heart of a nubile intern or receptionist.”
Not to mention that if owners of Hobby Lobby were Muslim rather than Christian, the same people who support this ruling would be frothing at the mouth against it. We should not be surprised when the Supreme Court uses this “narrow” ruling to further expand corporate and religious rights at the expense of individual rights.
UPDATE: Well, it took exactly one day for the Supreme Court to expand their “narrow” decision. They just expanded it to cover all contraception, even including education or counseling about contraceptives.
But the most worrisome case involves Eden Foods, whose owner claims in his lawsuit that “participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients” offends his “deeply held religious beliefs.” Except that an interview he gave last year shows that his belief is actually political, and has nothing to do with religion. He said:
I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.
Unfortunately, the Supreme Court decision does not allow the courts to determine the “sincerity” of someone’s religious belief.
I just hope that the Quakers now sue to give them the constitutionally guaranteed right to not pay the 45% of their federal taxes that go to the military, based on their sincerely held pacifist beliefs.
33 Comments
Apples and Oranges: I think the comment on JCPenney does not work as no Health Insurance covers sacrifices of Human beings. (exception to what I just said would be abortions):)
Hobby Lobby specifically objected to emergency contraception, which it claims (falsely) is equivalent to abortion. The analogy is definitely apt.
Why again are we trying to protect the rights of corporations?
Sorry, more specifically why are we protecting the religious freedom of a corporation that cannot practice a religion? This is a stupider ruling than Citizen’s United, any that’s saying something.
Supposedly the ruling was “narrow” in that it only applies to corporations that are “closely held”, which means there are only a small set of mostly fixed owners.
But yeah, really stupid. And we’ll see how long it remains “narrow”. See the last link in the post for a good analysis of that.
The Supreme Court has just put itself in the middle of determining what are valid religions and what those religions believe. This decision is beyond stupid.
I’d love to have one of those “strict constructionists” on the conservative side of the Court explain to the founding fathers how entirely artificial beings can have personal liberties.
I think having single payer system can solve the issue where corporations are no longer in business of providing insurance to employees. This way people can keep getting things that they need, while privately held corporations can operate in the values of their faith.
Like Mozilla which was not even private (I think so), had values which contradicted having Brendan Eich as CEO, so he was made to leave. At least in Hobby Lobby case, they are not firing employees that are not on same page as them, they are only against providing very small subset of birth control.
Hassan, single payer was the object right from the beginning 20-25 years ago. Get Health Care Insurance out of the work place. First was added to the work place after World War II to entice people to the company. Actually Teddy Roosevelt the first to propose Health Care for all, long before World War II.
We all agree with you.
Your house and car insurance are not offered you in the work place. Why should health care? This from someone who paid my own until I got on Medicare and am still paying $300 a month.
Does this ruling set a precedent regarding the payment of taxes which support war by Quakers? (Or members of other “peace” churches?)
Here’s another point, now that there is no right of refusal by an insurer, can’t someone just dump their employer plan and get one they want? You don’t have to accept a plan your employer offers. I disagree with most opinions here. I do not believe a company should be mandated to provide contraception, at full price you’re talking about $20 month or $10 for condoms at the pharmacy.
And on abortion…
As I’ve said before, I am for a women’s right to choose if she chooses responsibly in the 1st trimester. After that, unless her physician says the fetus is unviable or could cause the mothers death then that is a conversation between them. If the later is not part of the issue and she aborts after the 1st TM then in my opinion it is murder.
And lastly, on single payer, unless your deaf dumb an blind and haven’t kept up on the VA debacle (which has been going on forever), that is gov’t run healthcare at it’s finest in the USA. No thanks, I prefer my healthcare in the private marketplace. If you’re poor and most of the affected veteran’s were, you can’t afford choices and get stuck with govment care. As someone who has used govment care at both the VA and military hospitals, I can tell you how it works. If your sick, you make and apt and get seen 10 days later (not much help if you have strep throat or an ear infection). Then they give you a # to call to go o the doctor who will actually test you, generally the apt is 10 to 40 days out. You’ll drive 50 miles, wait for awhile, a really long while and be seen by someone who says they need to run some tests and gives you a # to schedule the test, duh! So you schedule the test, which is another 10 -30 days out and if you live that long you have the test. Then they say your doctor will have the results in a few day and give you his # to schedule a follow-up. Your catching on now, I can see it, yep, 10 – 30 days later you see the provider who will tell you what you have.
That’s the government healthcare that your veterans deal with. I think that model sucks and so should you. So before we start whining about contraception, lets whine about Soldiers, Sailors, Marines and Airmen who have to tolerate that. Lets talk about something real.
The VA debacle is terrible and heads should roll but i thought some organizations like VFW were not interested in privatizing http://washingtonexaminer.com/push-to-privatize-veterans-affairs-gaining-traction/article/2548911
If corporations are not just people but religious people, shouldn’t they be named in scripture? How do they take communion? Or do corporations have specialty corporatey religions?
To anyone engaging in special pleading because they don’t like contraception or the ACA: the tone will change once an obscure or dispreferred religion makes a claim in a lower court, citing the SCOTUS decision as precedent.
If totally privatized health care worked that well, we wouldn’t have had tens of millions of uninsured people or folks getting their coverage cancelled for preexisting conditions to pad the corporate coffers. We’ve paid more for and gotten less out of our system than the rest of the developed world. There is no case for totally privatized health insurance.
As to the VA scandal, it is horrible, but does anyone think that the problems may have come from increasing the demand for VA hospital services (via unnecessary and/or mismanaged wars) while refusing to fund care for returning service men and women? I think there are a lot of levels of blame there before you get to “see! government can’t do anything right!” It’s also a little silly to shun the health concerns of one massive portion of the population in favor of addressing a problem of another portion of the population. We’re a resourceful bunch. We can do both.
But birth control isn’t even what this mess of a ruling is about. This, as IK has written/quoted/commented, is about the Court tearing down the establishment clause and giving “religious” businesses ways to skirt laws. It is a classic Roberts’ court decision in that it makes a seemingly limited decision that will serve as a terrible precedent for future cases.
“[If] she aborts after the 1st TM then in my opinion it is murder.” This stance, while seemingly benign, is actually unbelievably cruel. There are a very large number of horrific conditions that are not detectable until second trimester screening.
Take osteogenesis imperfecta (brittle bone disease). Depending on the severity, birth could crush the infant’s bones, killing it in an excruciatingly painful way. Some forms are fatal, but most are not and there is no way to test. Or what about trisomy 13? Most that survive to birth die within the first year of life. Anencephaly? Holoprosencephaly?
Here’s the kicker… NONE of those conditions are detectable in the first trimester. All of them (except for extreme forms) involve viable fetuses, and none pose a health risk to the mother. Do you really believe aborting a fetus, knowing that there’s a good chance it would only live for hours, days, or months, is murder?
Even setting that aside… If it truly is murder, what sentence do you propose for the mother? Life imprisonment? Capital punishment? What if she tries it with a hanger? After she’s treated for hemorrhaging, should she be arrested and thrown in jail for a few years? Does it matter if she already has children?
Yes, I’m being hyperbolic for a reason. I suspect that you don’t really think it’s murder. I have no doubt you think it’s immoral, but that does not make it murder or anywhere close to the equivalent.
“[T]he tone will change once an obscure or dispreferred religion makes a claim in a lower court, citing the SCOTUS decision as precedent.”
That’s perhaps the most hypocritical part of this ruling: They can’t claim it as precedent. The majority (all Catholics) went out of their way to make it clear that this ruling was ONLY about these particular forms of contraception. They explicitly state that this ruling CANNOT be used for other objections, such as transfusions. In doing so, they enshrined the objection promoted by their particular religious doctrine to an elevated status. The writing in their decision makes it perfectly clear that they have no qualms about ruling against those lesser religious objections.
Michael, did you read the last link in the original post? They give a good argument against that claim.
And by the way, I’m not at all interested in discussions about whether abortion is murder. That way lies madness, and nobody will have their mind changed on that topic. And I’m also bored with discussions about single payer and how much better it would have been than Obamacare. Clinton, one of the most powerful democratic presidents spent a ton of political capital on trying to get single payer and we all know how that turned out. Get over it.
IANAL, but the ruling seems at a minimum to be very messy. The SCOTUS cannot create legislation out of whole cloth, so they must have at least gone through the motions of basing their decision on existing law. If that decision is based on extending the RFRA to corporations, how can they claim that the decision is narrow?
Isn’t creating narrow applications tantamount to creating new law?
And on what legal grounds can these particular moral objections be privileged over others?
…having read more… I see now that the core part of the ruling is to extend RFRA to for-profit corporations. As asinine as that sounds, it’s only a ‘small’ step from exemptions already granted non-profits corporations and individuals.
Which leaves the question of narrowness. Nothing I’ve read is persuasive that the ruling can be applied only to contraceptives. Yes, healthcare in general can be provided by alternative “less restrictive” ways. But where does the ruling ensure that, say, the cost transfusions cannot be denied?
Links to good analysis will be appreciated.
Well that didn’t take long:
http://www.latimes.com/business/hiltzik/la-fi-mh-expanded-hobby-lobby-20140702-column.html#page=1
Michael – Your throwing a red herring with the possible birth defects.
I agree that complicated pregnancies require additional analysis and that’s why I said that after the 1st trimester any issues need to be discussed by a physician and patient and whatever they decide is up to them.
And yes 3rd trimester abortions on a live and viable fetus are murder. Both the abortionist and participating female need to be charged. 2nd trimester abortions on a viable fetus need to be deliberated to determine if the child could have survived.
Don’t we prosecute persons for murder who kill a mother with an unborn child?
Adoption is a perfectly reasonable alternative to killing babies because some people don’t make great decisions. Let’s teach them to be better decision makers think forward by inserting impulse controls and take responsibility professor, then we can have a different conversation. Slaughtering the innocents that result from poor decisions is certainly a choice, but is it the right or best one?
Patriotsgt, you missed the whole point regarding the birth defects. Many of those complications CANNOT be confirmed until VERY CLOSE to the third trimester. For instance, you may not have a confirmation until, say, week 23 or 24. That means you have less than two weeks (third trimester begins around week 26) to come to a very complicated moral dilemma. Is there really a difference between week 25 day 7 and week 26 day 1? If you want it LEGALLY defined as murder, then the answer must be yes. And it’s NOT a red herring because the fetus in all of those conditions is technically viable, but many women find carrying them to term to be inhumane. Ultimately, here’s the decision: Do you trust our legislative bodies to write a law that is perfect to address all of these issues, or do you trust women to make the decisions about their individual case based on consultation with qualified medical professionals? Also, I don’t think making blanket judgments about “poor decisions” is the best way to approach the discussion.
IK, I hadn’t read the last link at the time, but I have now. While I see his point, I’m not convinced. I’m not suggesting that you should take my interpretation over Toobin’s, but here’s one thing he missed by lumping the two together. The majority in Harris “clearly indicates that the majority would have been willing extend its judgment to all government workers.” However, the majority in Hobby Lobby go out of their way in several places to say the decision CANNOT be extended. Taking the Justices at their word, they are signaling their willingness to be hypocrites in this regard and tackle religious exceptions on a case-by-case basis. I don’t find the LA Times article to be proof, because that seems rather standard practice to order pending cases be re-evaluated for consistency with a new SCOTUS decision. I am very willing to admit that I could be wrong, though.
Dan, just for reference, the key problem with some of these decisions is U.S. Code, Title 1, Chapter 1, Section 1 (the “Dictionary Act”), which clearly states: “unless the context indicates otherwise…the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” That applies to ALL legislation passed by Congress, including RFRA.
“Let’s teach them to be better decision makers think forward by inserting impulse controls and take responsibility professor, then we can have a different conversation. Slaughtering the innocents that result from poor decisions is certainly a choice, but is it the right or best one?”
While we are busy assuming that the pregnancy occurred because of “poor decision making”, then why not put the sperm donor in jail as well? That was certainly poor decision making on his part. After all the dumb woman who got herself pregnant is obviously incapable of making your version of a good decision. She had some help along the line in getting prenant. And since she is such a poor decision maker, then the sperm donor should have shown more responsibility and not impregnated her to begin with. Let’s just throw them all in jail.
As I suspected, this whole birth control issue is “much ado about nothing”
http://hosted.ap.org/dynamic/stories/U/US_HEALTH_OVERHAUL_FREE_BIRTH_CONTROL?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2014-07-04-04-08-53
Now Mississippi and Alabama oppose birth control and abortions, have very low taxes to care for all the unwanted population, but that is their problem.
Michael, as I’ve said twice if there are issues about the viability of the fetus or life of the mother, that IS a decision that she and her physician needs to make. AND I’m fine with that.
On the poor decisions yeah, a blanket statement may not be the best way, but it does have to be part of the conversation. Yes WILDWOOD, the man is equally responsible for the life they created. However, the law does not give the man any legal say in whether or not a women choses to abort. She can say yes, he can say no, but it doesn’t matter what he wants if the women wants to abort his child. And yes if she gives birth he should provide support for that child, under penalty of jail.
What I don’t like is being a nanny. We’re making laws assuming people can’t learn to make better decisions. When we do that we give them an excuse to keep making poor decisions. You and I have to pay for their unwillingness to make better decisions, and as long as we do and don’t call them on it they will continue on their present course.
PatriotSgt – Really? The cost of a morning after pill is what has you upset? I’d suggest that it’s a whole lot less than the cost of that (presumably unwanted) child.
I find the abortion debate to be tedious. You will never be able to convince me that women should not be able to make choices about their own bodies, and I will never convince you that you don’t have the right to make those choices for them.
Michael, Yeah, I see that the RFRA is specifically loosely written to allow broad “person” interpretation.
The RFRA already covers individuals and nonprofits. In which case why is everyone so upset about for-profit organizations getting exemption? I’m already shocked that nonprofit Catholic hospitals are allowed to deny their employees mandated contraception coverage. Why should I be any more shocked when Hobby Lobby wants in on the same?
Patriotsgt. The man can say no before having sex. If his choice is to risk it, then he should bear the same responsibility of criminal action as the other parties involved. If you are going to make criminals of people for making poor decisions then that has to start with the sperm donor.
If we want people to make better decisions then we have to educate them in how to do that. Many late term abortions are because the women don’t even realize they are pregnant. That goes back to education. Why aren’t they being taught this in school? Could it be because of the pressure to not have it in schools, to water down, or give false information about sex and pregnancy? First there are cries about teaching sex ed, (can’t do that it might give them ideas or it’s not the Christian way), then there are cries because females are wanting abortions. I don’t think you can have it both ways.
Also the anti-choice side has made abortions difficult, if not impossible to obtain for much of this country. The fact that many have to travel hundreds of miles to find a clinic, adds to the cost and stress and at times causes late decision making, (many need to find a clinic, find transportation, find the money, find the time if they are working). You talk about adoption, but the fact that the majority of those fetuses are not Caucasian means that many are not adoptable. Thus they go into the system as infants, or they go home to be raised by their uneducated relatives, and they in turn grow up to be poor decision makers.
Until we decide to put our money into good education, starting at a very early age(3), we are going to continue to have an uneducated populace and that leads to poor decision making.
Dan and IK, re-reading my original point (15), I now see that I misspoke and gave the wrong impression. My words, “these specific methods of contraception,” did not accurately express my views. My view is (and was) that the Five (Scalia, Thomas, Alito, Kennedy, Roberts) would accept any religious objection to contraception. My intention was that “specific methods” referred to contraceptives as a whole versus other methods of health care; I did not intend to imply a segregation of the methods inaccurately identified as abortifacients versus other forms of contraception. My word choice was bad, and I can see how it (as written) could (and should) be taken as factually wrong.
I still do consider this a “narrow” ruling, though, because the Five limited it to contraception. In her dissent, Ginsberg identifies things like transfusions. To me, a ruling that was not narrow would open the door for those objections, and that’s what I don’t think will happen. Burwell specifically calls out those medical services and explicitly states that it cannot be used as such.
Patriotsgt, we’re never going to agree on this, but you are still missing the point when you say you have no problems “if there are issues about the viability of the fetus or life of the mother.” In the cases I am describing, there ARE NO ISSUES of viability of the fetus or the life of the mother. There ARE ISSUES of the life expectancy and well-being of the child. Depending on the severity (which CANNOT be determined in utero), the child could live days, months, a few years, or all the way to adulthood.
The bigger problem with this discussion right now is that there is NO data to use as a foundation. The most widely used study that I’ve found was from the Guttmacher Institute, which collected questionnaires (note that relying on self-reporting is problematic statistically). Its findings are things like this: 71% didn’t know she was pregnant, 24% took time to decide, etc., and only 2% had a fetal problem diagnosed. Two problems with this study: the data is from 1987 and it defines “late-term abortion” as anything after 16 weeks. The former is significant because prenatal testing, especially for genetic abnormalities, has dramatically improved in the past 30 years. The latter is significant because it only rules out first trimester. Thus, the study makes no distinction between second and third trimester abortions. I have not found a single data source that provides any accurate reporting of current third trimester abortion reasons.
Until we have such a data set (which won’t happen any time soon because both sides would rather argue ideology than empiricism!), we cannot have a rational discussion relating to the prenatal health diagnoses. I can tell you, based on my wife’s experience working in the field, is that there are a lot of women who suffer great emotional and psychological distress because they get very bad diagnoses toward the end of the second trimester. Blanket third trimester bans, even if they include “reasonable” exceptions for viability and life of the mother, make a bad situation worse for these women. If they are financially capable, they could travel to the very, very few places where late-term services are available. Many women, especially those that are financially limited, cannot.
Can we drop the abortion argument? It is a waste of time.
The point here is that allowing people and businesses to exempt themselves from laws because of religious beliefs will be an unmitigated disaster. The Bill of Rights says that the government cannot establish an official religion. So how can they allow some religions to be exempt from laws and not others? If Christians can exempt themselves, why can’t Muslims decide they want to follow Sharia law and not US law?
And now a group of religious leaders is trying to get Obama to exempt religious organizations from the new rules against discrimination against LGBT people. “Narrow ruling” my arse. http://www.theatlantic.com/politics/archive/2014/07/hobby-lobby-is-already-creating-new-religious-demands-on-obama/373853/
OK IK.
Michael, Wildwood and others, thank you for some great conversation and for making intelligent arguments. I agree with some of all your arguments.
IK to your exempting from laws, another point to consider is that every administration that I can remember in the recent past, Bush, Clinton, Bush, Obama chooses and exerts exemptions by executive influence to prosecute or not certain laws. The Army is the same way, it depends on who is in charge as to which standards will be enforced or not. So what i’m saying is even if the Supremes had voted to uphold that portion of the law, the next administration could choose no to enforce it. An I completely agree that there will be organizations and people who immediately try to broaden, challenge and expand any ruling by the high court.
Patriotsgt, the problem with your analogy is that administration’s can choose not to prosecute for certain laws, but they don’t typically prosecute one group and not the other. It’s one thing to say “we aren’t going to charge anyone holding a certain amount of weed” and completely another to say “we aren’t going to charge any [insert religious followers] holding a certain amount of weed.” as soon as you add the religious element, you’ve gone against the spirit of the Constitution.
I see your point Thatguy and it is well taken.
IK, I understand where you’re coming from. I really wish it were as easy as saying, “Let’s agree to disagree.” The “safe, legal, and rare” detente that came out of the Clinton era was wonderful. But it’s dead.
In my posts, I was not arguing about the morality of abortion. I was arguing about the legality. If you think the Religious Right is doing extreme things regarding contraception, what do you think they’re doing in regard to abortion? They are PASSING laws, defining abortion as murder (not immoral…actual murder), all over the place that are designed to serve as a challenge to Roe. They know that AT LEAST 3 (Scalia, Alito, Thomas) of the 9 Justices are chomping at the bit and will not hesitate to overturn it. And chances are they could get Kennedy and Roberts, too.
But the thing is, these laws are overly broad and poorly written. Many of them include language that would make it a crime for ANY medical personnel to provide information about abortion services. That includes people like my wife, who used to work in a position where she interpreted prenatal genetic test results and counseled patients on their options. As this was a Catholic hospital, their policies explicitly forbid her from bringing up abortion, but she was allowed to answer questions freely if the patient initiated the discussion. Some of these laws would make that a crime. Sure, when there’s no way you’d be affected, it’s easy enough to argue that these laws would probably (but not definitely) be thrown out by the courts. It’s not so easy when you have people you care about that could potentially go through the process of being legally charged with a crime for providing medical advice. Even if conviction is unlikely, the psychological consequences of just being charged are devastating.
Yes, if we were just debating the morality of abortion, I would agree that it would be a waste of time. That’s just not how things are anymore. But this is your site, and you’ve made your wishes known. So I will not mention it again.