My Take on the Hobby Lobby Decision

Just in case you haven't heard, the Supreme Court ruled that "closely held, for-profit companies can claim a religious exemption to the Obamacare requirement that they provide health insurance coverage for contraceptives." (Article)

If you just want my opinion on the issue:  It's bad.  I don't like it.  It is a dangerous precedent.  While it seems consistent with our laws and the defense of religious freedom, I think that it undermines individual freedoms.  And lastly, I do not approve of any laws or decisions that reduce our rights.

Reproductive rights are often cast as a women's issue, presumably because most of the restrictions that get bandied about are on women.  But as far as I am concerned, a threat to reproductive rights is a threat to all of our rights.  A woman's right to birth-control or an abortion does not interfere with my individual liberties unless I am being forced to conduct the abortion or administer the birth-control (assuming I was morally or religiously opposed to those things).  A woman having an abortion would only possibly conflict with my reproductive rights if it was my child that was going to be aborted, but that is a terrifically complicated issue, and my default would be to err on the side of freedom and support the right to an abortion (of course I probably wouldn't stay in a relationship with someone who would abort my child, so in the end it would be a clear indication that I should not have attempted to reproduce with that person).  This applies to other rights as well.  My right to keep and bear arms does not interfere with your rights unless I try to harm you with them.  A gay couple's right to marry does not interfere with my rights unless... I can't even come up with a situation where that could affect my rights.

We should all seek to avoid impinging on the rights of others in the exercise of our liberties.  But that does not mean that we should curtail the rights of others because there is a possibility that they may impinge on our rights.

My goal is always to try to see as many sides to an issue as I can.  I try to look for rational arguments that both agree and disagree with my position.  On this reproductive rights issues, as with gun rights issues, I am firmly on the pro-rights side.  Actually I try to be on the pro-rights side of pretty much any issue.  That includes religious rights.  And that is where this case gets sticky, because this is a case of two sets of rights smashing into each other.

In order for me to get to this case, I'm going to need to go on a digression.

When I say "rights" I mean rights that are outlined in our constitution, amendments, or supported by court cases.  Our constitution does not give you the right to determine when, where, or with whom you can have or not have children.  But the courts have upheld the right of people to decide whether or not they want to have children.  As far as I'm concerned if you want to strip Americans of a right that has been granted you had better have a mass of overwhelming, rational, incontrovertible evidence that the destruction of that right is necessary to the survival and function of our society.

I have yet to hear arguments against abortion or birth control that meet those requirements.

That does not mean that there are no valid arguments against abortion.

I am firmly of the opinion that the primary valid argument against abortion comes down to an issue of worldview.  If you believe that life begins at conception, then abortion is murder.  Plain and simple.  One can try to confuse the issue by pointing out that many people who oppose abortion, support capital punishment; but the conflict between those two ideas is irrelevant to the issue of abortion.  Just because someone holding a particular position is a hypocrite does not invalidate that position.

It seems to me that our culture has come to make a big deal about hypocrisy.  Hypocrisy is treated as a major sin.  I think that is absurd.  Hypocrisy is a minor sin.  We cannot seek to be better than we are without engaging in hypocrisy. (Here is a piece on Hobby Lobby's hypocrisy)

I am firmly of the belief that one's moral and ethical standards should be aspirational.  If you are able to routinely live up to your own moral and ethical standards then you need to raise those standards.

We should, all of us, be trying to be better than we are.  But if we cannot be hypocrites then we cannot hold goals loftier than what we are.  Pointing out another's moral failures or intellectual inconsistency does not make one a better person.  That does not mean that moral failures and intellectual inconsistency should not be pointed out, but it does mean that just because someone is inconsistent or wrong about something it does not invalidate all of their other positions automatically.

Which brings us back to the Hobby Lobby.  The argument in favor of the Hobby Lobby's position is that giving female employees insurance coverage that would include birth control methods contrary to the ownership's religious beliefs would be a violation of religious rights.  I do not think this argument is quite as spurious as it seems.  If one ascribes to a worldview that sees abortion and plan B as murder (believe me, I am very aware that the conflation of these two things is bullshit, but they are conflated in this debate), then providing material support for those acts would make one an accomplice in murder.  It seems hard to argue that people should be forced to help kill other people against their will.

The comparison that anti-abortion activists often draw is the Holocaust.  Just as WWII era German citizens had a moral obligation to oppose the murder of millions of Jews, modern era US citizens have a moral obligation to oppose the murder of millions of babies.  To this my response is to point out the prime corollary to Godwin's Rule of Nazi Analogies, if you bring up Hitler the conversation is over and you've lost.  Nazi analogies are not meant to be illustrative or edifying, they are meant to equate one's opponents to Nazis, and thereby invalidate anything that the opponent claims.  It means that one does not view one's own position as defensible on its own merits, and instead seeks to discredit other positions through fallacious association.

But while the Holocaust analogy might be bullshit, it does illustrate the depth of feeling on the issue.  And yet I still think that the Hobby Lobby, and other closely held or publicly held companies, should be forced to behave in a fashion that their leaders view as murderous.  To start to explain why, I'm going to quote Ruth Bader Ginsburg:

"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."

There's the rub.  This decision creates too wide an opening for religious groups to force their beliefs and values on individuals that do not hold those values or beliefs.  However, I do not think that privately owned companies, religious groups, or individuals should be forced to violate their religious beliefs.  But Hobby Lobby is not privately owned, it is closely held, which means that it can be publicly traded, but is not normally publicly traded.  If a company is going to seek to reap the benefits of entering the public realm for private gain then it should be required to adhere to public mores.

If we seek to err on the side of freedom in this case, then it seems to me that the Supreme Court made a bad decision here.