The Supreme Court narrowly ruled in favor of the plaintiffs today in Burwell v. Hobby Lobby (2013), upholding religious liberty objections as sufficient justification for certain employers to refuse to provide specific forms of contraception under the administrative rules and regulations of the so-called Patient Protection and Affordable Care Act (ACA).
It cannot be stressed enough just how narrow this ruling is. It concerns just four of the 20 legally classified contraceptive pharmaceuticals and devices available to American consumers, specifically the four most controversial (e.g., intrauterine devices (IUD) and the so-called “morning after pill”), characterized by some – particularly those with strong pro-life religious views – as abortive in nature rather than simply preventive in nature.
Predictably, the Obama administration was displeased with the ruling. The president’s press secretary responded:
The Supreme Court ruled today that some bosses can now withhold contraceptive care from their employees’ health coverage based on their own religious views that their employees may not even share. President Obama believes that women should make personal health care decisions for themselves rather than their bosses deciding for them.
Today’s decision jeopardizes the health of women who are employed by these companies. As millions of women know firsthand, contraception is often vital to their health and wellbeing. That’s why the Affordable Care Act ensures that women have coverage for contraceptive care, along with other preventative care like vaccines and cancer screenings.
We will work with Congress to make sure that any women affected by this decision will still have the same coverage of vital health services as everyone else.
President Obama believes strongly in the freedom of religion. That’s why we’ve taken steps to ensure that no religious institution will have to pay or provide for contraceptive coverage. We’ve also made accommodations for non-profit religious organizations that object to contraception on religious grounds. But we believe that the owners of for-profit companies should not be allowed to assert their personal religious views to deny their employees federally mandated benefits.
Now, we’ll of course respect the Supreme Court ruling and we’ll continue to look for ways to improve Americans’ health by helping women have more, not less, say over the personal health decisions that affect them and their families (emphasis added).
Much of the secretary’s response is entirely symbolic, but certainly not unique, and meant to salvage (probably effectively) an ability to make political hay with certain demographic donors and fundraisers. But this statement is also replete with misleading, and in some cases patently false, rhetoric.
“Bosses” cannot “withhold contraceptive care from their employees’ health coverage.” Certain bosses no longer have to pay for certain types of contraception that is, by their purview, barbaric and sinful it is true but they cannot prevent or “deny” the women in question from obtaining these means of contraception any more than they could prior to the law’s enactment. If the president truly believes that “women should make personal health care [sic] decisions for themselves,” particularly as it relates to such controversial aspects of modern healthcare, then perhaps he should not have forced employers unilaterally to finance these services in the first place. This would be very similar to me asserting my constitutionally-protected right to keep and bear arms as rationale to force an employer to purchase a handgun for my exclusive, personal use. Like the contraceptives in question, my employer cannot deny my personal right to obtain a firearm for private use but fairness and basic ethics demand that s/he not be made to buy it for me too. To further suggest that this ruling “jeopardizes the health of women” simply by requiring them to either a) pay for these contraceptive means themselves or b) obtain them through different legal means (i.e., the government directly, Planned Parenthood, etc.) is absurd on both substantive and superficial levels.
The Supreme Court got this correct on not only religious rights grounds but also insofar as corporations are persons in the context of whom is actually paying the bill(s). No doubt the political Left will invoke objections echoing the Citizens United decision, decrying the court’s alleged overreach in once again characterizing corporations as “persons” under the law, but corporations do not pay taxes nor do they pay insurance premiums or fees – “persons” do. A person does not cease being one when s/he becomes a business owner any more than a person does when s/he becomes an employee.
The Supreme Court erred in its implied rationale, however, that the concerned regulation violated the Religious Freedom Restoration Act (solely) rather than additionally the First Amendment and also in not dismissing the regulation out-of-hand in the first place as a violation of Article I‘s direct delegation of legislative authority solely to the Congress. The court also could have genuinely taken the Constitution seriously and dismissed the entire notion of requiring one property owner to transfer that property to another via involuntary coercive force but that notion is far broader in scope than what is specifically represented by the just ACA.
This ruling, like ObamaCare in general, is all about what virtually all Big Government programs are about: who gets what at whose expense. The political Left will use this ruling to rally its base and generate revenues and it will likely do so without ever accurately characterizing either the ruling itself or the fundamental ethical issues that underlay it. But, in the end, if this disingenuous approach is ultimately effective with its targeted demographic then the intellectually and/or principally challenged among us certainly earn the “right” to continue to be treated as nothing more than an electoral demographic by the paternalistic oligarchs of the nanny state.