Heads-up about Supreme Court on Hobby Lobby

It is very likely that the Supreme Court will issue its verdict this week in the Hobby Lobby Case (aka, Sebelius v. Hobby Lobby Stores, Inc). When it comes down, the court’s decision has the potential to be the most consequential religious liberty case in our lifetimes. It could set the trajectory for religious liberty—for good or for ill—for generations to come.

What’s at stake? Obamacare’s contraceptive mandate requires certain employers to provide insurance coverage for abortion-inducing drugs. That means that some Christian and other pro-life employers will be forced to violate their consciences or face crippling fines from the government.

I have no idea how the Court will rule on this. Will it be a decided on first amendment grounds? Or will be on statutory grounds? I really don’t know. I don’t have confidence in Chief Justice John Roberts, simply because he whiffed it so badly in his last at-bat on Obamacare.

Whatever happens, it’s likely to carry implications for religious liberty that go far beyond Obamacare. Can the government use its coercive power to force citizens to violate their consciences? The Court will tell us the answer to that question very soon. Stay tuned.

————

Until the decision comes down, you might want to follow…

http://www.scotusblog.com/

https://twitter.com/SCOTUSblog

35 Responses to Heads-up about Supreme Court on Hobby Lobby

  1. Roy Fuller June 23, 2014 at 5:25 pm #

    To answer your final question: “Can the government use its coercive power to force citizens to violate their consciences?” The answer is clearly, of course. Government forces citizens to violate their consciences regularly, in that government compels us to do and support activities with which we disagree. The real question in this case is rather, are we going to afford corporations the same guarantees of personal liberty that we have traditionally only given to individuals? Which question you believe to be most important (and accurate) will determine to a great degree how one views this case.

  2. andrew alladin June 23, 2014 at 5:43 pm #

    So this is what the Great American Experiment has come to. We’re nervously waiting to hear what Anthony Kennedy or John Roberts will decide for tens of millions of Christians who do not wish to be complicit in providing life terminating drugs to their employees.

    The liberal/secular left knows this: Christians in America will complain to talk show hosts, complain on their blogs and youtube channels, make grandiose speeches at Republican gatherings, and grumble about “throwing the bums out.” But in the end they will meekly obey and move on to some other distraction. That’s what has always happened before and there is no reason to think that it won’t be happening again.

    Think about it. The next time someone’s about to wish you a “Merry Christmas” and then stops himself mid-syllable and says “Happy Holidays,” that’s a victory for the left. And the next time someone is about to say “Happy Holidays” and instead says “Merry Christmas,” that’s also a victory for the left. We all mock political correctness and yet even in private conversations we still obey its dictates. Such is the success that the left has.

    The left will succeed on this one. I wonder what the next great cause would be?

    • James Stanton June 23, 2014 at 6:18 pm #

      Andrew,

      This stuff about Merry Christmas and Happy Holidays is meaningless. What profits any of us if people continue to say Merry Christmas and yet continue to drift towards societal degradation. This is simply a symptom of that general condition. If you treat this as as a battle against the “left” then you’re setting yourself up to be demoralized. I think we should put things in proper context.

      • andrew alladin June 23, 2014 at 8:25 pm #

        Actually James, I was talking about the way that the left has been completely victorious in changing the way people speak, think, and act,even in private social situations. I could use any number of issues. That the left now mandates your holiday greetings is not meaningless – its just an example of their success in big things (gay marriage, abortion on demand) and small things (happy holidays and seasons greetings). The left does sweat the small stuff.

        The “drift towards societal degradation” is no drift. It has been a well orchestrated effort involving the courts, popular culture, legislative chicanery, ostracization, fines, boycotts, mockery, etc.

  3. James Stanton June 23, 2014 at 6:12 pm #

    I think Hobby Lobby is in the right on the general merits of this case although I disagree with the hyperbole surrounding this case. Our conscience isn’t violated because of legal arguments that force businesses to submit to government dictate. Our conscience should be clear and would remain so under protest of a law that infringes on religious rights as business owners.

    • buddyglass June 24, 2014 at 12:05 pm #

      I wish we’d gotten rid of the entire notion of employers providing health insurance. It’s dumb, inefficient, and prone to liberty issues like this one.

  4. bobbistowellbrown June 23, 2014 at 6:39 pm #

    It will be interesting to see how far God will allow the United States to go before He puts a halt to our Tower of Babel. I predict that Hobby Lobby will go out of business rather than be forced by the government to go against their conscience.

  5. Chris Ryan June 23, 2014 at 8:12 pm #

    Then good riddance. Employees aren’t slaves and I’m tired of the moneyed class telling the plebes what they can & can’t do with their bodies, wages, and benefits. If you don’t think your employees deserve to have birth control then you don’t deserve to be in business. We’re employees, not slaves.

    • Gus Nelson June 23, 2014 at 8:28 pm #

      Chris Ryan: If Hobby Lobby simply goes out of business by selling off its assets, all its employees lose their jobs. Is it better for people to have a job and not receive insurance for abortion and abortion inducing drugs (Hobby Lobby actually pays for a variety of other birth control as I understand it) or is it better to lose their jobs and become dependent on the taxpayers? Hobby Lobby isn’t telling anyone what they can or cannot do with their body – all Hobby Lobby is saying is it doesn’t want to pay for abortions. I’m, thus, utterly unclear upon what logic or rationale you base your comment.

      • Ian Shaw June 24, 2014 at 7:56 am #

        Chris, does Hobby Lobby oppose paying for any birth control or just the ones that are deemed as abortificients? I don’t think they are saying that all and any employees are not allowed birth control.

        • Chris Ryan June 24, 2014 at 1:25 pm #

          This is a scientific question & the scientific answer is that they are not abortifacients, they simply are not. In terms of Buddy’s point below, my compensation & benefits are mine, not the companies. Telling me I can’t use my insurance for BC is as wrong as telling me I have to use my income to pay tithes to whomever their favorite church/temple/mosque/etc is. Anything else would be authoritarianism.

          • Ian Shaw June 24, 2014 at 2:04 pm #

            One could also use the same framework to say that a government that forces businesses/institutions to provide insurance to working more than “X” hourse per week is totalitarian.

            ACA is causing a major headache with univerisity’s right now. You can’t have student workers working “full-time” or the universities/colleges would have to provide them benefits. Now all student workers, especially foreign studnets where their visas state they can only work on campus, are finding out that ‘work study’ on campus isn’t going to afford them the financial help it once could.

    • buddyglass June 24, 2014 at 12:06 pm #

      “If you don’t think your employees deserve to have birth control…”

      It’s worth noting this isn’t what Hobby Lobby’s owners actually believe. In the context of this case they’re not seeking to deny their employees’ right to access birth control. They just don’t want to pay for it.

      • Jane Dunn June 24, 2014 at 10:04 pm #

        Buddy — The employers are not being asked to pay for it. The insurance benefits are non-cash compensation earned by the employees just like their cash compensation is. Employers are not paying for the drugs when employees use their insurance benefits any more than the employer is paying for them when employees use their cash wages to buy them.

        • buddyglass June 24, 2014 at 11:34 pm #

          I’d say it’s a matter of semantics. If the employer purchases an insurance policy for its employees that provides some treatment for free or at at a steep discount then the employer is more-or-less purchasing that treatment for its employees.

          Side note: I still think HHS could have reached a reasonable compromise with Hobby Lobby et. al. on this issue. Maybe mandate that if they’re not going to cover hormonal birth control they have to take whatever savings dropping that coverage would bring and use it to purchase some enhanced coverage that primarily benefits the same group of employees who would otherwise benefit from hormonal birth control. That is to say, women of reproductive age. Maybe in exchange for not covering hormonal birth control it has to offer extra-awesome maternity and well-woman coverage.

          • Jane Dunn June 25, 2014 at 1:04 am #

            It’s not just semantics. Once Hobby Lobby pays for the policy, the policy benefits belong to the employee and it is up to the employee to decide whether or not to use the benefits she earned and now belong to her to buy abortafacient drugs. This is no different ftom employee deciding whether to use the wages or salary she has earned and which belongs to her to buy abortafacient drugs. Once the non-cash compensation and the cash compensation have been given to the employee it is the employee’s compensation yo do with it what she wishes.

            Providing extra maternity benefits doesn’t help women of reproductive age if they actually need the contraceptives. Plus, the ACA already provides awesome well woman care, of which the contraceptive coverage is a part.

            • buddyglass June 25, 2014 at 11:42 am #

              “Once Hobby Lobby pays for the policy, the policy benefits belong to the employee and it is up to the employee to decide whether or not to use the benefits she earned and now belong to her to buy abortafacient drugs. This is no different ftom employee deciding whether to use the wages or salary she has earned and which belongs to her to buy abortafacient drugs.”

              But it is different because Hobby Lobby is choosing and paying for the policy. In the case of wages, Hobby Lobby is giving the employee cash that the employee can then use to buy abortifacient drugs. In insurance case Hobby Lobby is purchasing a policy for its employees that provides abortifacient drugs. The latter has a sense of “provision” that the former doesn’t. An analogy:

              I pay my employee for a day’s work and he goes out and blows half of it on heroin. In this case I can’t be said to have provided him with heroin; it’s none of my business what he does with his wages after I pay him. But suppose I paid him half as much, and spent the difference on a “heroin plan” that provides discounted heroin to all my employees. Then, the employee makes use of this plan to purchase discount heroin. In this case I could be said to have provided him with the heroin, since I chose to dock some portion of his wages and invest them in the heroin plan.

              “Providing extra maternity benefits doesn’t help women of reproductive age if they actually need the contraceptives.”

              The benefits swap wouldn’t be perfect; some folks would come out worse, others would come out better. The point was to create a scenario where Hobby Lobby couldn’t derive any financial benefit from dropping coverage for hormonal birth control and where they couldn’t be said to be unfairly targeting women (since they’d be replacing the hormonal birth control with other benefits that exclusively benefit women.)

              • Jane Dunn June 25, 2014 at 3:32 pm #

                Your heroin analogy doesn’t work because the insurance plans are not “birth control plans” or “abortafacient plans.” Under the insurance plans the employee may use her benefits for any number of things, not just abortafacient drugs.

                The employer buys contract rights and gives the contract rights to the employee. None of the employer’s money goes to the pharmacy where the BC is purchased. It’s more like paying an employee partly in cash and partly with a debit/credit card. Once it is given to the employee the employee has no control, and cannot limit what the employee buys with that card. What Hobby Lobby wants is somerhing more like giving its employees a debit card that can only be used at certain stores. That’s not fair. Whether it’s cash compensation or non- cash compensation in the form of an insurance policy or in the form of a debit card, the employer has no business limiting what its employees can buy with their earned compensation.

                Hobby Lobby isn’t saving any money by excluding the full contraceptive coverage because it would cost more for the women to all have babies, so the plans with and without the full contraceptive coverage cost about the same. IMO, allowing Hobby Lobby to decide that it would buy more benefits for women to have children but would not provide full contraceptive coverage is just plain offensive. It’s none of their business.

                • buddyglass June 25, 2014 at 4:58 pm #

                  Ooops. Responded in the wrong place. See my post below that starts with “Modify the analogy then”.

  6. Don Johnson June 23, 2014 at 8:47 pm #

    HL is willing to pay for insurance of 8 of 12 mandated birth control methods, they object to the other 4 as they can be abortion inducing. By requiring them to pay for those 4 methods, the owners see it as requiring them to pay for the death of a human and this violates their beliefs in a huge way.

    This is a clash of worldviews.

  7. Ryan Davidson June 24, 2014 at 2:04 am #

    While I accept that the case poses an interesting legal question, I do wonder whether the notion of a “Christian for-profit business” doesn’t run afoul of the Third Commandment. We use the term “Christian” to refer to those who bear the objective sign and seal of baptism and who are thereby made part of the covenant community. Should we start baptizing Christian businesses? And, if we do, should we do so at their inception, or must we wait for a credible profession of faith?

    I believe that there is legal merit to the Greens’ argument, but the theological merit is wholly lacking.

  8. Jason Adkins (@AdkinsJason) June 24, 2014 at 9:12 am #

    I’m wondering why you criticized Roberts for the last ruling on the Affordable Care Act. I understand your passion for religious liberty and freedom of conscience in the Hobby Lobby case, but why would you describe a ruling on taxation policy as having “whiffed it so badly”?

    • Brian Gaskin June 25, 2014 at 12:09 pm #

      Probably because the federal government argued that it wasn’t a tax in the courtroom. He went above and beyond to call it a tax to get to his ruling. Also the fact that the federal government can now make you buy a product you otherwise had a choice to purchase or not.

      • Jane Dunn June 25, 2014 at 3:44 pm #

        That’s not correct. The administration said it wasn’t a tax during debate over the bill in Congress. In court, however, the administration acknowdged it was a tax and specifically argued that if the law could not be upheld under Congress’s commerce clause power it should still be upheld under Congress’s taxing power. Chief Justice Roberts agreed with the administration on this point, which is why so many conservatives objected to the ruling so strongly.

  9. buddyglass June 24, 2014 at 11:59 am #

    “Can the government use its coercive power to force citizens to violate their consciences?”

    In general, yes it does. This is well established. And I’m almost positive you support the government retaining this power in general.

    The question isn’t whether the government can use its coercive power to force citizens to violate their consciences; it’s when and in what situations it should do so.

  10. buddyglass June 25, 2014 at 4:58 pm #

    Modify the analogy then. Say the employer purchases an “employee entertainment plan” that discounts movie tickets, iTunes music downloads, board games and heroin. Such a plan, paid for using employees’ potential wages, preferences the purchase of heroin (by subsidizing its cost) and thereby incentivizes its use. This is different simply paying employees the wages that might have been used to purchase the entertainment plan; in that case no one good is incentivized.

    “Hobby Lobby isn’t saving any money by excluding the full contraceptive coverage because it would cost more for the women to all have babies”

    Doesn’t this suppose that women on no-contraceptive plans are going to have babies at a higher rate that women on contraceptive plans? That result would surprise me. I’d expect women on no-contraceptive plans to purchase contraception out-of-pocket and have babies at about the same rate as women on the contraceptive plans.

    Side note: I’d be more open to requiring Hobby Lobby to provide plan covering contraceptives if it retained the option to “opt out” and provide no plan whatsoever. (Without being unreasonably fined.)

    • Jane Dunn June 25, 2014 at 6:03 pm #

      I still don’t think your new heroin analogy works because healthcare is not like entertainment. Women use BC because they need it. Women who are trying to have a child or who are open to having a child cannot be incentivized into using contraceptives even if they are free. Women who want to avoid pregnancy don’t need to be incentivized to purchase contraceptives. It just doesn’t work that way.

      Plus, Hobby Lobby isn’t arguing that the contraceptive mandate incentivizes women to buy contraceptives. It claims it is being made to pay for them or to aid in the purchase of them and that’s just not true.

      “Doesn’t this suppose that women on no-contraceptive plans are going to have babies at a higher rate that women on contraceptive plans?

      — Yes, it does. Women who don’t have consistent, affordable access to contraception have babies at a higher rate than women who have consistent access to low or no cost contraception. While it’s true that many women on a no-BC plan would be able to buy it on their own, this is not true for lots of other women. Some BC is very inexpensive, but some of the most effective options, including the IUDs to which Hobby Lobby objects, can cost $1,000 or more. A fairly recent study demonstrated that women who were given a consistent supply of free BC, had significantly fewer unplanned pregnancies, which would also lower the abortion rate.

      Hobby Lobby can already opt out of providing any insurance. I believe I read that it would cost them considerably less to pay the fines than it would to provide the insurance.

  11. buddyglass June 25, 2014 at 6:28 pm #

    I should really proof-read these one last time before hitting “post”. Just now noticed the missing words in the above.

    “Women use BC because they need it. Women who are trying to have a child or who are open to having a child cannot be incentivized into using contraceptives even if they are free.”

    The incentive would be to steer women wishing to avoid pregnancy toward hormonal birth control methods (because they’re free or near-free) instead of other methods that would normally (in the absence of subsidies) be less expensive. Condoms, NFP, etc.

    This is ignoring the situations where hormonal birth control is prescribed for non-contraceptive reasons.

    “Hobby Lobby isn’t arguing that the contraceptive mandate incentivizes women to buy contraceptives. It claims it is being made to pay for them or to aid in the purchase of them and that’s just not true.”

    How is incentivizing the use of hormonal contraceptives by paying for them to be subsidized not “aiding in the purchase of them”?

    “Doesn’t this suppose that women on no-contraceptive plans are going to have babies at a higher rate that women on contraceptive plans?

    “Hobby Lobby can already opt out of providing any insurance. I believe I read that it would cost them considerably less to pay the fines than it would to provide the insurance.”

    I should have added: “without being penalized for doing so”.

    • buddyglass June 25, 2014 at 6:28 pm #

      Also, I’ve once again failed to reply directly to your post. Sorry about that.

    • Jane Dunn June 25, 2014 at 7:42 pm #

      “The incentive would be to steer women wishing to avoid pregnancy toward hormonal birth control methods (because they’re free or near-free) instead of other methods that would normally (in the absence of subsidies) be less expensive. Condoms, NFP, etc.”

      — But the less expensive methods require the cooperation of the woman’s partner and are generally less effective. This is one of the reasons that women who don’t have consistent, affordable access to effective contraceptives have more unplanned pregnancies. This is none of an employer’s business. And, the idea of an employer incentivizing one form of family planning over another is just plain creepy. (Although an employer could, I think, put up signs warning of the evils of the abortafacient drugs/devices to which they object.)

      “How is incentivizing the use of hormonal contraceptives by paying for them to be subsidized not “aiding in the purchase of them”?”

      — Because the only thing the employer is paying for is a package of contract right that the employer then turns over to the employee. That package of contract rights then belongs to the employee. At that point, the employer has not paid for anything to be subsidized, especially since the cost of the package of contract rights wouldn’t increase by adding full contraceptive coverage. Only if the employee chooses does the insurance company, not the employer,** pay the pharmacy for the contraceptives. This is no different than the employer giving the employee a debit/cash card as part of ber compensation. That she uses it to buy something unhealthy doesnt mean the employer is subsidizing it. She earned the compensation. It’s her money, just like it’s her contract rights, to do with what she wishes.

      **Hobby Lobby is actually self insured, which makes it a little more complicated, but I don’t think it should make a difference in the end. Conestoga Wood, the other case that’s part of the Hobby Lobby appeal, has the traditional insurance plan.

      • buddyglass June 26, 2014 at 9:38 am #

        Giving the employee a cash/debit card doesn’t preference any one good over any other good. Giving the employee an insurance card backed by a policy that covers X, Y and Z but not A, B, and C preferences the former over the latter.

        I’m going to throw out another silly analogy, bu bear with me. Suppose we lived in a barbarous society with zero respect for the rights of blacks. Think something out of a sci-fi movie. We discover that a chemical found only black persons’ spinal cords happens to be an amazing cure for cancer. Way better than standard methods. But you have to kill the subject to extract it. So various drug companies start harvesting this compound (i.e. committing mass murder) and marketing it as a cancer treatment. The govt. stipulates that all employer provided insurance plans must cover this treatment because it’s extremely effective.

        Now one of your criticisms of my “entertainment plan” analogy is that “entertainment” isn’t a need whereas birth control (and health care more generally) are. Well, cancer treatment is a definite need. Now suppose you own a small business in this hypothetical society, but you see blacks as human beings with intrinsic worth equal to your own. You’re horrified that a drug company would commit mass murder in order to create a cancer treatment. Would you be perfectly comfortable on a personal level in providing your employees with insurance that covers the new treatment? I wouldn’t.

        (I’m aware that hypothetical is beyond ridiculous. It’s purely for the sake of argument.)

  12. Jane Dunn June 26, 2014 at 11:57 am #

    “Giving the employee a cash/debit card doesn’t preference any one good over any other good. Giving the employee an insurance card backed by a policy that covers X, Y and Z but not A, B, and C preferences the former over the latter.”

    — Not entirely. A cash/debit card can only be used at stores that accept them. So, there is a limit on where that form of compensation can be used. But beyond that an employee is not limited in what she can buy with it. Similarly, an insurance card limits where the benefits can be spent (dr office, hospital, pharmacy, etc.) but, apart from non-product-specific general restrictions such as “medically necessary” and “not experimental” an employee should be able to use her insurance card to purchase any legal health care item she and her doctor deem appropriate. It’s Hobby Lobby that is trying to give a debit card that covers (and privileges) X, Y, Z products and not A, B, or C products.

    This new analogy made me pause, but I still don’t think it works. Of course I wouldn’t be comfortable providing the coverage in your admittedly absurd analogy. But if the drugs were legal to make, I don’t think I have a legal basis to refuse to cover them. If I lived in that world, my highest priority would be to work to make the killing and the drugs illegal. The insurance coverage would be a symptom and not a cause of the problem. Notably, Hobby Lobby isn’t arguing that the drugs/devices it won’t cover should be illegal.

  13. buddyglass June 26, 2014 at 2:42 pm #

    “Notably, Hobby Lobby isn’t arguing that the drugs/devices it won’t cover should be illegal.”

    Probably because they’d be reviled for doing so and would see not only their sales suffer but potentially also their case against the contraception mandate. I’d bet money that its owners would like to see it made illegal for (allegedly) abortifacient hormone cocktails to be prescribed for the purposes of contraception. (Sometimes they’re prescribed for other reasons; I’d guess they’re okay with those.)

    • Jane Dunn June 26, 2014 at 2:46 pm #

      I agree, which is why I think that last analogy doesn’t apply. 🙂

  14. Don Johnson June 27, 2014 at 1:24 pm #

    Start at the beginning. Why do employers offer employees health insurance? The reason is that the US had a wage freeze at the time and employees were leaving to get better pay. The employers petitioned the US gov’t asking that they be allowed to do something to retain their employees, in other words, employers do not like wage freeze laws as it means then end up losing their best employees. This is the basic economic law of supply and demand.

    So many employers started offering health plans as a way to retain employees. Both the employers and employees got tax benefits from this and employers got to form large pools for insurance purposes. All insurance is based on assessing risk for insurance pools and pricing it accordingly.

    Now the gov’t steps in under Obama and tries to force companies to offer so-called high quality insurance plans. As part of this they tried to force insurance for 12 types of birth control, the concern is that 4 of these methods worked by abortion in some cases, this is documented in the literature for these 4 methods. There was some effort to redefine the meaning of abortion in order to obscure this.

    Some companies are closely held by one or just a few people. These people objected to being required to pay for insurance that covered those 4 methods that had an aborting effect. So the question is whether these people can be required to pay for something that kills humans. This is why the question is before the Supreme Court.

Comment here. Please use FIRST and LAST name.

Powered by WordPress. Designed by Woo Themes