The lesson of today’s Hobby Lobby decision: A corporation’s right to religious freedom trumps your right to reproductive health care

“The court, I fear, has ventured into a minefield,” Supreme Court Justice Ruth Bader Ginsburg wrote today in her vociferous dissent following the high court’s 5-4 decision to allow certain employers the right not to provide coverage for medical procedures and medications that run contrary to their stated religious beliefs. The case in question was brought before the Supreme Court by Hobby Lobby, a national chain of craft stores, and Conestoga Wood Specialties Corporation, in the wake of the Affordable Care Act (ACA) having been signed into law. The owners of both companies, who identify as evangelical Christians, took exception to the ACA mandate that they provide contraception coverage as a part of their employee health insurance plans, and refused to comply. And, with today’s ruling, it would appear that the law is on their side. Closely-held companies, in the opinion of the Supreme Court majority, should be afforded the same rights as individuals, who are protected under the Religious Freedom Restoration Act of 1993.

hobbylobbyBader Ginsburg, to put it mildly, had significant problems with the majority decision. “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?”, she asked. It’s a good question, and one which we will undoubtedly hear more about in the coming months, as more and more CEOs who consider themselves to be religious, begin challenging the mandates of Obamacare in court. As an estimated 90% of companies in America, as I understand it, would be considered “closely-held,” which is to say that they are privately held, there’s an enormous opportunity for people to jump into the fray now that the opportunity has presented itself. [note: “Closely-held does not necessarily mean small. Hobby Lobby has over 550 stores, and employs as many at 21,000.]

Noting the “startling breadth” of the decision, Bader Ginsburg suggested that it was just a matter of time before corporations begin opting out of laws they find “incompatible with their sincerely held religious beliefs.” And the result, you can be sure, will be messy. Now that we’ve decided in favor of a Christian-owned firm, how can we decide against a Scientologogist-owned one, as doing so, in the opinion of Bader Ginsburg, would be “perceived as favoring one religion over another,” the very “risk the (Constitution’s) Establishment Clause was designed to preclude.”

But, five men on the Supreme Court felt it necessary to intervene on behalf of David Green’s company (Hobby Lobby), and its right to operate according to “Biblical principles.” (Perhaps not so surprisingly, all of the women on the Supreme Court were on the other side of the argument.)

In addition to the blatant misogyny inherent in the ruling, I’m troubled by the fact that the whole argument is built on the notion of corporate personhood. Essentially these five justices, by ruling in favor of Hobby Lobby, are saying that the Religious Freedom Restoration Act, which was written to protect the religious freedoms of individuals, can be applied to corporations as well. They’re saying that corporations can have deeply held religious beliefs, and that those beliefs are protected under law. Instead of restricting the notion of corporate personhood, which has proven to be absolutely cancerous to American electoral politics, when-in corporate spending has been deemed equivalent to free speech, we’re actually pushing it even further with today’s decision. (The Department of Health and Human Services unsuccessfully argued that theses companies forfeited the protection of the Religious Freedom Restoration Act when they chose to incorporate.)

It’s worth noting that the plaintiffs in this case, as far as I can tell, are not completely against contraception. At least, historically, Hobby Lobby’s insurance covered some forms of contraception. The owners of Hobby Lobby and Conestoga, though, objected to the fact that four of the twenty forms of contraception currently approved by the Food and Drug Administration “prevent an already fertilized egg from developing any further by inhibiting its attachment to the uterus.” And that’s where the battle lines were drawn.

hobbylobby2Before you begin feeling too much sympathy for these companies that were asked by our government to do something they didn’t feel God would approve of, though, you should know that they’e hypocritical at best when it comes to enforcing these “deeply held beliefs.” Not only does Hobby Lobby buy most of their goods from China, where abortion is essentially mandated by the state, but they apparently invest in the very corporations that manufacture the forms of contraception they claim to have ethical problems with. The following comes from a Mother Jones report on where Hobby Lobby invests their retirement funds.

…These companies (Hobby Lobby invests in) include Teva Pharmaceutical Industries, which makes Plan B and ParaGard, a copper IUD, and Actavis, which makes a generic version of Plan B and distributes Ella. Other stock holdings in the mutual funds selected by Hobby Lobby include Pfizer, the maker of Cytotec and Prostin E2, which are used to induce abortions; Bayer, which manufactures the hormonal IUDs Skyla and Mirena; AstraZeneca, which has an Indian subsidiary that manufactures Prostodin, Cerviprime, and Partocin, three drugs commonly used in abortions; and Forest Laboratories, which makes Cervidil, a drug used to induce abortions. Several funds in the Hobby Lobby retirement plan also invested in Aetna and Humana, two health insurance companies that cover surgical abortions, abortion drugs, and emergency contraception in many of the health care policies they sell…

I know my optimism may be somewhat misplaced, but I can’t help but think that this most recent development, as terrible as it may be, could bring us closer to the goal of single-payer health care. The more that individual companies push back, and try to fight Obamacare, the more they make it clear to the thinking people of America that health care isn’t something that should be left to corporations. As has been mentioned by others today, if the federal government wanted to increase access to birth control… which was the objective motivating this requirement all along… “the Court thinks it could do it in ways that didn’t violate religious freedom, like taking on the task of distributing contraceptives itself.” Amen. Let’s remove the corporations from our private health care decisions altogether, and create a robust, fair and science-based health care system that serves all Americans, irrespective of their religious beliefs.

In conclusion, I’d like to leave you with a quote from infant-footed Ann Arbor businessman Al McWilliams… “I don’t understand,” says McWilliams, “most of what Hobby Lobby sells is effective contraception.” I have my doubts as to its authenticity, but McWilliams, shortly after making the previous comment, bolstered his argument by quoting Hobby Lobby CEO David Green. “In an effort to curb teenage pregnancy,” Green, according to McWilliams, said, “we’ve deployed extensive scrapbooking workshops throughout the Midwest.”

Oh, and for those of you who work at Hobby Lobby, here’s a link to a bunch of information on the effectiveness of pulling out… Best of luck… And God bless you.

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  1. Posted July 1, 2014 at 2:55 am | Permalink

    It’s the free market at work. If you don’t like it, you can go and work at Wal Mart.

  2. anonymous
    Posted July 1, 2014 at 8:16 am | Permalink

    Somewhere in America I bet there’s already a company asking a gay employee to pack his bags, or refusing service to a transgender person, on the basis of religious liberty, hoping to be the next case before the Supreme Court.

  3. John Galt
    Posted July 1, 2014 at 8:41 am | Permalink

    Chinese abortions don’t count. Their babies are white, like Jesus Christ.

  4. Meta
    Posted July 1, 2014 at 8:51 am | Permalink

    “In this case, it is clear that people’s rights were being threatened by women.” -Andy Borowitz

    Read more:

  5. Eel
    Posted July 1, 2014 at 9:24 am | Permalink

    On Sunday night, HBO’s John Oliver anticipated the ruling. “If corporations want to be people, they should have to take the rough with the smooth,” he said. “Female companies, you only get to make 83 cents on the dollar, Sorry Wendy’s. I guess Burger King just worked harder. And there are also the little annoyances of being human. So Mr. Peanut, I hope you enjoy attending your friends’ shitty improv shows.”

    You can watch it here.

  6. Lynne
    Posted July 1, 2014 at 10:43 am | Permalink

    My worry (and RBG’s too) is that we have opened a huge big can of worms but like you, I wonder if the silver lining is that it will motivate people to vote against these people. At some point we are going to have to have a constitutional amendment which forbids corporate personhood if we want to retain any semblance of democracy. The only way that is going to happen is if people can get out and actually vote for their interests.

    It is going to be hard. I can remember back when GWB was running and I predicted this exact sort of problem with the SCOTUS and reproductive rights. Several of my friends thought I was overreacting and yet, hopefully, now they will see why a vote for president can have consequences long after their term is over so they should stop voting for men who will appoint people to the courts who will take away their rights.

    In the long run, if this helps women and those men who value women realize that voting for Republicans means losing important rights, they may change their tune in the voting booth and *that* is likely to be good for women, minorities, and everyone except white dudes hoping to hold on to their privilege.

  7. Mr. X
    Posted July 1, 2014 at 11:32 am | Permalink

    Here’s to all my friends who tell me that it doesn’t matter who we have in the White House.

  8. Chris Christie by proxy
    Posted July 1, 2014 at 12:03 pm | Permalink

    “You cannot call your business ‘Christian’ when arguing before the Supreme Court, and then set aside Christian values when you’re placing a bulk order for cheap wind chimes.”

  9. Kim
    Posted July 1, 2014 at 12:42 pm | Permalink

    Suck a uterus, Supremes.

  10. kjc
    Posted July 1, 2014 at 1:23 pm | Permalink

    “Here’s to all my friends who tell me that it doesn’t matter who we have in the White House.”

    i’m assuming you don’t mean your deported friends.

  11. Elf
    Posted July 1, 2014 at 3:17 pm | Permalink

    I liked this Daily Kos headline today: What if a Muslim company used the ‘Hobby Lobby’ decision to impose its values on white Christians?

  12. Elliott
    Posted July 1, 2014 at 3:49 pm | Permalink

    I also liked this from the HuffPo: Hobby Lobby Still Covers Vasectomies And Viagra

  13. Levi
    Posted July 2, 2014 at 12:50 am | Permalink

    So … I’m conflicted. Help me.

    My knee-jerk is the same as yours, Mark, and my fellow commentors.

    But. It’s a small leap from “religious conviction” to “ideological conviction.” Likewise, the distinction between “small business” and “corporation,” in terms of personhood, gets rather blurry.

    I think of Beezy’s as a business but also, in a lot of ways, as a person or, at least, the tasty expression of a person. I think of KFC as a corporation. I can’t imagine the legal argument that would articulate the distinction and draw a clear line.

    Let’s say I open a bar in Ypsi, and I’m pro-gay, pro-beer and anti-gun. Do I have to employ the guy that shows up wearing his legal sidearm and constitutionally protected “God hates fags”‘ T-shirt while telling patrons drink is of the devil?

    If I open a bar … or hire anyone … am I corporation? The minute I hire someone, have I ceded control of all I hold dear?

    I really dunno. But, I would like to know, if you readers opened a business, how much would you like it to reflect your values?

    How much freedom of speech would you give your employees?

    Case study:

    Picture yourself walking into Sidetrack for the first time. The guy at the reception desk has Nazi tattoos, an open sidearm, and is wearing a “Death to Queers” button. Would you place an order or turn and walk away?

    Correct me if I’m wrong, but I believe Sidetrack is a legal corporation.

    But, for me, Sidetrack is Linda, Cafe Ollie, Beezy’s, City Body, Standard Printing, Ugly Mug, Corner Brewery, the Co-op, etc. are people I know and like. I believe they’re also corporations or LLCs.

    Okay. Closing thoughts. It’s not, on the small scale, what this is “about.” But, I think it, long term, is.

    If WalMart gets first in line and buys up all the vendor spaces at our local Farmers Markets, how can we legally say, “No, that’s not what we’re (ideologically) about”?

    Local businesses are, for me, both persons and legal corporations or LLCs. But corporations are also local franchises (Congdon’s ACE Hardware).

    At what point is the freedom of speech/practice of a business owner lost?

  14. Posted July 2, 2014 at 9:19 am | Permalink

    I’m afraid I don’t understand what this means

    “Here’s to all my friends who tell me that it doesn’t matter who we have in the White House.”

    Are you talking about Supreme Court appointments? I hope so, because people who say that it doesn’t matter who sits in the Oval Office drive me up the wall.

  15. Lynne
    Posted July 2, 2014 at 2:28 pm | Permalink


    There are lots of legal distinctions for types of businesses and corporations. This decision applies to some of them. Here is a nice wikipedia explanation of this:

  16. Lisa
    Posted July 2, 2014 at 3:22 pm | Permalink

    Did anyone watch or even listen to the hearing? Hobby Lobby does not keep women from health care! They provide reproductive health care for both men and women they just ask that you pay for the 4 forms of birth control that destroy a fertilized egg. Any woman employed there can get an abortion, they just won’t pay for that. I am sure Planned Parenthood will fill any vacuum.

  17. Levi
    Posted July 2, 2014 at 11:22 pm | Permalink

    Thanks Lynne,

    I do understand the basic distinctions between a legal corporation vs. an LLC etc. I’ve also heard of Wikipedia.

    Currently, I’m an independent contractor. I’m also a liberal. If a tea party candidate asks me to cut their grass or organize their campaign, I will politely decline.

    Yes, that’s discrimination. It’s also me having the freedom to hold to my ideals. Truth is, I hate discrimination but want the freedom to discriminate.

    Discrimination vs. personal freedom. Old arguments, to be sure.

    Mark’s headline … “A corporation’s right … trumps your right” somewhat clouds the fact that Sidetrack is, legally, a corporation.

    Absent the issues, Mark’s (and most others) headline reads: “V’s right to X trumps Y’s right to Z.”

    But don’t read the headlines … fill in the blanks.

    So … If the headline read: “Sidetrack’s (V) right to forbid sidearms (X) trumps your (Y) right to open carry (Z).” I’d, as liberal, view that as a victory.

    If the headline read, (sorry Linda … not a real example), “Sidetrack’s (V) right to forbid gays (X) from working in the bar (Y) trumps you if you’re gay(Z).” I’d view it as a loss.

    It’s a legal equation.

    So, I’m filling in the blanks, here. Depending on the terms I plug in, I either hate or love this ruling. Mark seems to hate it, and I trust Mark. But, even the best intentions are clouded with terms. Anyone else a bit befuddled?

  18. Frosted Flakes
    Posted July 3, 2014 at 8:16 am | Permalink

    If what Lisa says is true, then we have a lot people with an insanely distorted sense of the actual ramifications of this decision.

  19. Frosted Flakes
    Posted July 3, 2014 at 8:17 am | Permalink

    If what Lisa says is true, then we have a lot people with insanely distorted senses of the actual ramifications of this decision.

  20. Page
    Posted July 3, 2014 at 9:45 am | Permalink

    Don’t get your panties in a wad libbies. Read the decision. Hobby Lobby pays for 16 of 20 contraceptives. The insurance company pays for the other 4.

    Why in the heck do libbies want employers, the government AND insurance companies in their bedrooms????

    Supreme Court opinion written by Justice Samuel Alito:
    The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
    This refers to an exception created by the Department of Health and Human Services that forces insurers to pick up the tab for coverage objected to by religious non-profit organizations and churches. Women employed by these organizations receive the same coverage, medications, and cost-free contraceptives as everyone else as mandated by HHS, even though the organizations themselves refuse to pay for that coverage.

  21. anonymous
    Posted July 3, 2014 at 10:16 am | Permalink

    What you’re failing to understand is that there are other companies that will deny all birth control. This is just the first in a series of cases in which businesses and powerful individuals will seek to push their religious agendas through the courts. The forms of birth control that Hobby Lobby is objecting to were approved by the United States government. They are legal. Hobby Lobby and others don’t like that they lost that fight, though, so they’re seeking to change things this way. It’s anti-democratic.

  22. Lynne
    Posted July 3, 2014 at 11:37 am | Permalink

    I agree that the implications of just this one Hobby Lobby ruling are minor and they only affect those women too poor to pay for their own birth control if they want one of those four particular methods that Hobby Lobby refuses to cover. It is also true that Hobby Lobby pays their employees better than most similar stores to the point where the extra money will more than cover the costs of these birth control methods. I don’t want to minimize the effects of this. Poor women at companies which don’t pay as well as Hobby Lobby are certainly going to feel the effects of this and frankly so are the rest of us. Poor people having babies they don’t want isn’t good for society either. However this ruling itself is not a disaster but what is troubling is the precedent it sets for future rulings and in particular the precedent that an employer’s religious beliefs extend to a corporation they own and also somehow exempt them from the law. Ginsberg’s dissent pretty much spells out my fears.

    So far, as far as I can tell, this ruling only applies to certain types of corporations and not to publicly traded corporations or to businesses such as LLCs, sole proprietorships, or partnerships. It also will not apply to any companies with fewer than 50 employees. It doesn’t sound like it would apply to Levi’s business in that businesses with less than 50 employees were already exempt from the law Hobby Lobby challenged.

  23. Meta
    Posted July 7, 2014 at 8:22 pm | Permalink

    From the Slate article “Obama Punks the GOP on Contraception”:

    After two solid weeks of Republicans rapidly escalating attacks on contraception access under the banner of “religious freedom,” Obama finally announced what the White House is proposing: an accommodation of religiously affiliated employers who don’t want to offer birth control coverage as part of their insurance plans. In those situations, the insurance companies will have to reach out directly to employees and offer contraception coverage for free, without going through the employer. Insurance companies are down with the plan, because as Matt Yglesias explained at Moneybox, contraception actually saves insurance companies money, since it’s cheaper than abortion and far cheaper than childbirth. Because the insurance companies have to reach out to employees directly, there’s very little danger of women not getting coverage because they are unaware they’re eligible.

    That’s the nitty-gritty. The fun part of this is that Obama just pulled a fast one on Republicans. He drew this out for two weeks, letting Republicans work themselves into a frenzy of anti-contraception rhetoric, all thinly disguised as concern for religious liberty, and then created a compromise that addressed their purported concerns but without actually reducing women’s access to contraception, which is what this has always been about. (As Dana Goldstein reported in 2010, before the religious liberty gambit was brought up, the Catholic bishops were just demanding that women be denied access and told to abstain from sex instead.) With the fig leaf of religious liberty removed, Republicans are in a bad situation. They can either drop this and slink away knowing they’ve been punked, or they can double down. But in order to do so, they’ll have to be more blatantly anti-contraception, a politically toxic move in a country where 99% of women have used contraception.

    Read more:

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