Some Thoughts on the Hobby Lobby Ruling

     Again, one can't but note that the vote on this case was entirely predictable-the 5 conservative justices voted for the right of at least some-mostly smaller-employers to buck a requirement of the ACA mandate that employers provide for contraception in employees' healthcare plans that doesn't raise the cost of it-ie, that employers must fund contraception for their employees out of their own pocket. 

    Conservatives, of course, hailed the ruling, while liberals decried it. As a liberal I'm pretty disappointed myself. I think at this point we must be clear that the only hope of putting a stop to such conservative decisions by the SJC is to somehow figure out a way to redress the Court's ideological balance. 

    It's quite bracing: while the Dems have won the popular vote in 5 of the last 6 Presidential elections we still have the Reagan Court in control in the judicial branch. Most liberals were appalled by the decision-I'm none too happy with it myself and it comes on the heels of a number of very troubling rulings by the conservative majority-like the gutting of Section 4 of the Voters Right Act last year. 

    By now you’ve heard about the Supreme Court’s decision in the Hobby Lobby case, in which they granted a corporation the right to excuse itself from the law requiring that health insurance plans to include coverage for contraception without cost-sharing. Kate McDonough says that even if you don’t work for a visibly Christian company, the ruling could well affect you:

To sum it up, five male justices ruled that thousands of female employees should rightfully be subjected to the whims of their employers. That women can be denied a benefit that they already pay for and is guaranteed by federal law. That contraception is not essential healthcare. That corporations can pray. That the corporate veil can be manipulated to suit the needs of the corporation. That bosses can cynically choose à la carte what laws they want to comply with and which laws they do not. Each specific finding opens a door to a new form of discrimination and unprecedented corporate power. If you think this ruling won’t affect you, you haven’t been paying attention. If you think these corporations are going to stop at birth control, you’re kidding yourself.

Her point that the employees already paid for the benefit is something that often gets overlooked. Health coverage is something you get paid in lieu of salary. You earn it with your labor; it isn’t a favor your employer does for you.

     http://www.washingtonpost.com/blogs/plum-line/wp/2014/06/30/happy-hour-roundup-387/

     This is a crucial point that must be borne in mind. Paul Waldman-who wrote the last paragraph, had pointed out himself, earlier, that this decision underscores the case for doing away with the employer based healthcare system altogether. 

      "The fact that most Americans get their health coverage through their employers is something that we all take for granted but has no logical purpose behind it whatsoever. No other industrialized country in the world does it this way, and the system didn’t develop in the United States because it made sense from any standard of efficiency, cost or providing superior benefits to citizens. It was an accident of history — one that would take some time and work to undo, but which is worth undoing. Not only that, both conservatives and liberals would have reason to support such a shift."

      "The system has its real roots in World War II, when the government imposed wage and price controls. Although there had been some health insurance plans sold through employers before, when companies couldn’t offer increased wages during the war, they began offering health benefits instead. When the IRS ruled that those benefits didn’t count as income and so were tax-free, the momentum toward employer-sponsored insurance was all but unstoppable (the deduction for employer-provided coverage is now the largest tax expenditure in the federal budget, dwarfing even the mortgage interest deduction)."

     http://www.washingtonpost.com/blogs/plum-line/wp/2014/06/30/hobby-lobby-shows-that-we-need-to-get-rid-of-the-employer-based-health-insurance-system/

     I wonder if conservatives would-some conservatives certainly have at time made the case against employer health insurance but seemed to forget that once their Holy War against Obamacare got under way-they embraced employer healthcare positioning themselves as its staunch defenders against ACA which would rip it asunder 

     The conservative writer from Reason magazine, Cathy Young, warns feminists not to engage in hyperbole. Yes, she calls herself a 'libertarian' but this is always for me a distinction without a difference. 

    "Ilyse Hogue, the president of NARAL Pro-Choice America, blasted the ruling as "a direct attack on women and our fundamental rights" from "five male justices." Others hailed the ruling as a resounding win for freedom of conscience. What's largely missing from the debate is the voices of feminists who believe it's dangerous to tie women's freedoms to government-mandated benefits."

   "It's unclear how broad the ruling's effects will be. The case applies to a specific type of business: corporations with a limited number of shareholders such as Hobby Lobby, the crafts store chain. The court's majority has held that, since religiously affiliated non-profits such as schools and charities are partially exempt from the contraceptive coverage mandate (which they believe would force them to pay for abortion-inducing drugs and devices), family-owned businesses are entitled to the same exemption."

    "Framing the issue as a "war on women" is misguided and polarizing. The fact that the court's three female justices dissented, along with Justice Stephen Breyer, is a function of ideology rather than gender. It is also worth noting that Justice Anthony Kennedy, who provided the swing vote in the case, is a strong supporter of women's rights and reproductive rights. And there are many women who believe the birth control mandate infringes on religious liberty -- among them Hobby Lobby co-founder Barbara Green. To suggest that those who share this view are woman-oppressing Neanderthals if male and dupes of the patriarchy if female is hardly conducive to civilized discourse."

      "Few people dispute that birth control is an essential benefit for most reproductive-age women. But does this mean that women are entitled to coverage that offers contraception at no out-of-pocket cost? No employer is claiming a faith-based right to forbid female employees to use birth control, only the right not to subsidize the use. While the mandate's supporters claim singling out birth control for denial of coverage is sex discrimination, it is worth noting that federal law does not require any contraceptive coverage for men."

      http://www.newsday.com/opinion/columnists/cathy-young/hobby-lobby-ruling-is-not-a-war-on-women-cathy-young-1.8618862

     I do think that it's true that we don't know how broad the impact of this ruling is. It only applies to certain 'small businesses' and doesn't prevent the government from funding birth control for these employees in some other way. Some liberals also caution overstating the threat:

     "Many Democratic and liberal groups quickly echoed Ginsburg’s view, warning that Alito’s opinion “opens the door” to a wide variety of efforts to escape Obamacare’s requirements and those in other laws.”

       "However, several prominent liberal scholars suggested that view is off the mark — and probably bad strategy to boot."

      “I think the decision is much more limited than Justice Ginsburg suggests,” said Harvard law professor Laurence Tribe, noting the majority’s suggestion that the government could simply pay for contraception coverage if employers do not wish to. “The option of having the government pay is clearly not going to be available in a lot of other cases involving discrimination or compulsory vaccinations… I think it’s premature to say they’re marching off a cliff.”

      "Georgia State University law professor Eric Segall agreed. “I am not an Alito fan, but he went out of his way to write a narrow opinion,” he said. “Besides, what will decide the case the next time this issue gets to the Supreme Court is who’s on the Supreme Court.”

      "Tribe also warned it was unwise to paint Alito’s opinion as sweeping — because it might make it seem more so. “Often the dissent claims the sky is falling and it becomes a self-fulfilling prophesy for the other side and something the dissent tries to run away from in the future,” the Harvard professor said.

Read more: http://www.politico.com/story/2014/06/hobby-lobby-supreme-court-decision-5-takeaways-108467.html#ixzz36EKF52mU

     Nevertheless, the war on women's reproductive rights is real-just look at all these Southern states that have closed virtually all clinics women can have abortions at in the state.

      http://www.al.com/news/huntsville/index.ssf/2014/06/state_health_department_north.html

     Mother Jones makes a strong case that this ruling is quite broad in scope. 

      “[W]e must decide whether the challenged …  regulations substantially burden the exercise of religion, and we hold that they do,” Justice Samuel Alito wrote for the majority. “The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.”

      "But as pointed out by Mother Jones magazine, the court majority was “overruling not just an Obamacare regulation, but science.”

     “According to the Food and Drug Administration, all four of the contraceptive methods Hobby Lobby objects to — Plan B, Ella, and two intrauterine devices — do not prevent the implantation of a fertilized egg into the uterus, which the owners of Hobby Lobby consider abortion. Instead, these methods prevent fertilization,” Erika Eichelberger and Molly Redden wrote on the liberal magazine’s website.

     "Alito appeared to ignore the FDA determination, writing that these four contraception methods “may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.” As pointed out to Mother Jones, Alito cites no science to back up his claim."

     http://atlantablackstar.com/2014/06/30/supreme-court-grants-religious-rights-corporations-ruling-dont-pay-contraception/

      We can quibble about how broad this ruling is-obviously one hopes Alito is right and it won't be so broad. However, the general legal trend on a woman's right to choose couldn't be more clear. If this trend is to be reversed we need a strong enough Democratic majority that we can finally get a SJC that will not hand down such egregious rulings.