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Public Companies, Private Contraception, and Obamacare

Steve Russell
4/5/14

On March 25, the US Supreme Court heard arguments in a case brought by a for-profit corporation, Hobby Lobby, claiming it (the corporation) would be denied religious freedom if forced to offer Obamacare compliant health insurance policies that cover birth control to some 13,000 employees.

We are told that the issue is religious freedom, and perhaps it is in a way. The pertinent question is what happens when an employer’s religious principles conflict with an employee’s religious principles? If both agree, there’s no lawsuit.

Obamacare contains an exception to the mandate to offer contraception for fully religious employers, and I consider this to be arrant (and errant) nonsense. They already have exceptions from employment discrimination laws, so why not just hire within their own faith?

I don’t know about all faiths, but as to Roman Catholics, the obvious problem is polling data that tell us most Catholic women in fact use contraceptives.

But let’s look at Hobby Lobby, which does not involve Catholicism, and therefore it becomes a more peripheral point that a majority of the justices serving on the SCOTUS are Catholics (Scalia, Sotomayor, Kennedy, Thomas, Alito and Roberts) and so perhaps a wee bit more likely to view birth control as a moral issue.

Hobby Lobby is a for-profit closely held corporation, with most stock in the hands of a trust created by the family that founded it. The Green family are devout Christians, which is why Hobby Lobby is closed on Sunday in spite of the general demise of blue laws. It’s worth mentioning that they also pay above minimum wage because they consider fair wages a Christian duty. Their religious objections do not extend to all contraception, so they have perhaps caught on that Jesus never said a word about birth control.

Jesus never said a word about abortion, either, but the Greens have convinced themselves, against the great preponderance of opinion in the medical profession, that two forms of birth control amount to abortion: intrauterine devices and the “morning after pill” also known as “Plan B.” I’ve always thought the Plan B name stands on a quaint assumption that there was a Plan A, but if you think about the needs of rape victims, it gets a lot less humorous.

However that may be, the Hobby Lobby case was argued as if IUDs and the Plan B pill were abortifacients, when they plainly are not. Why? Because this lawsuit is not about what is true but rather about belief that is, by definition, based on faith, not science. Having decided to accord legal dignity to faith, it would make no sense to get off into the scientific weeds. If the Greens could be persuaded by science, they are not having that lawsuit and we are not having this conversation. Truth is irrelevant.

The issue is not what is true, but rather, when the beliefs of an employer and the beliefs of an employee conflict, who gets to have their way? Even this statement of the question has a hole you could drive a truck though.

Here’s the truck. Could somebody explain the moral distinction between health insurance offered as part of a compensation package covering immoral pills and an employee using her wages to buy immoral pills? In the former case, the insurance company supplies the immoral pills. In the latter case, a drug store. In both cases, the immoral pills are made possible by the employment.

Shall it be the law that you can’t spend your wages on immorality by the lights of your employer? Cigarettes? Beer? Pork? What if your employer considers your carbon footprint a moral issue? The boss won’t let you drive a gasoline car and you can’t afford an electric car. Whoops, get a new job or start walking.

If you are shacking up, like 48 percent of couples when they begin living together in the US, and your boss thinks it’s a moral imperative that you be married first, like 23 per cent of couples when they begin to live together, can you spend your paycheck on your partner?

The night after the Hobby Lobby oral arguments, after I had heard the talking heads claim it’s a close case, I dreamed a bunch of news items no crazier than what Hobby Lobby wants:

*Jehovah Sinks, a plumbing company founded by Witnesses, will offer employees health insurance that does not cover blood products.

*Jesus Saves State Bank offers health insurance that does not cover any form of birth control or vaccination against human papillomavirus. It is immoral to shield people from the consequences of immorality---that is, sex.

*The Christian Science Monitor announced that no health insurance would be offered to employees at all, but there would be weekly prayer meetings for chronic illnesses and after hours prayer rooms for acute illnesses. Emergencies will be handled by text message sent to all believers from a central number so as to concentrate sacred firepower in cases of accident, heart attack, or stroke. Non-believer employees might wish to obtain health insurance and continue the current practice of dialing 911 in case of health emergency.

*Fundamentalist Muslims and fundamentalist Jews have joined together in a lawsuit testing whether they can prevent their employees from buying immoral foods with their wages.

*The David Abramson Corporation, founded in 2001, is pleased to announce its corporate bar mitzvah, after which it will be responsible for all of its corporate activities. The rabbis we have engaged to debate the question have not yet decided whether responsibility for corporate actions between 2001 and 2014 will be ours after the bar mitzvah or whether that responsibility still lies with our parent corporation.

Corporations are not people, people, and therefore have no right to free exercise of their religion. Of course, I would have said corporations have no right to spend money to influence elections, and that cow is already out of the barn. I would not accord corporate people equal legal standing to human people at all, but that bull is already out of the barn chasing that cow.

It’s time to round up those bovines.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington.

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