11 thoughts on “SCOTUS does it again”

  1. Now I get it: the Hobby Lobby is specifically objecting to contraceptives that they say actually work like abortions.

  2. There’s a gender fairness problem that I’m not seeing given much attention, because the connection is a bit roundabout. Obamacare covers contraception if you’re a woman. It doesn’t if you’re a man. And I’m not so much complaining about unfairness to men. This discrepancy is actually more harmful to women than to men, but it takes a bit of thought to see why.

    The ACA specifies that it doesn’t cover condoms or vasectomies. Vasectomies are much less bad for a man’s health than tubal ligation is for women, and for married couples that intend to be monogamous the best option for permanent contraceptive measures is the vasectomy (not that they’re the only ones who matter, but it is a large percentage of the population). Covering vasectomies spares women from mutilating a healthy biological system in a way that is much less biologically disruptive for a man to have done to himself (although certainly not risk-free, so he’s absorbing a cost that’s less than what she has to absorb under the ACA coverage).

    Furthermore, condoms aren’t covered, and condoms can serve as protection from diseases and don’t involve messing with anyone’s hormones. It’s well established that hormonal contraception can cause permanent harm if used long-term, and even short-term it can lead to problems (e.g. depression). Some may well prefer the methods that are covered, but I can’t see how refusing to cover these helps women.

  3. I don’t have the legal knowledge to know whether today’s decision was legally justified, but I deeply regret that women’s reproductive choices are once again being dictated by someone other than themselves.

    That said, I think the real culprit here is not businesses like Hobby Lobby, but the fact that we have a health insurance system that is predicated on businesses buying our healthcare. It’s understandable how we got here, but the results are not sound, fiscally or ethically. Health care costs are a huge burden on business, and it puts them in the position of making decisions that are not their proper concern. If we go to a national system like so many other countries, we get out of this ridiculous situation (and get more health care for our $$, too, I would imagine).

  4. Jeremy, there are a lot of health related things that aren’t funded by the ACA. I would expect few, if any, over the counter items are paid for, even though we’re learning that bad teeth care can have devastating effects on one’s health, so a toothbrush is important. So condoms don’t seem to me that big an issue. However, if tubal ligations are covered and vasectomies are not, that is for puzzling at least.

  5. Condoms are pretty cheap, too. But that fact does somewhat undermine the claim that there’s a moral urgency for covering 20 kinds of contraception when an employer only wants to cover 16 of them. I do think the vasectomy issue is more important, and it really does make no sense to me, even if their goal is to be concerned only about women (which it shouldn’t be to begin with). Medicaid and many state public health plans cover vasectomies. It always sounds strange to me when people complain about Viagra being covered but something for women not covered, as if that alone means it’s some intentional way to hurt women, when vasectomies aren’t covered either, and no one even notices that.

  6. Yeah, you got it, Anne: it’s about what they consider murder.

    The double-standard argued here is one from the perspective where reproductive choice is what’s at issue. For the religious side, specifically the Hahns and Greens, it’s clear the reasoning goes that this isn’t about reproductive choice but participation in murder as they understand their religious beliefs to indicate. So, arguing about vasectomies or Viagra against their reasoning will not do anything without addressing this particular association of this form of contraception with murder, since it isn’t a double-standard from the perspective of these religious believers: they aren’t saying men are free to murder fetuses while women are not, nor are they saying women cannot take steps to prevent pregnancies rather than terminate them, nor are they saying they will make determinations about the sexual habits of their employees. They are saying their religious beliefs require them to remove their support from what their religious beliefs lead them to conclude is murder. We have to listen to the arguments to understand them, and we cannot be granted what we are unwilling to give.

    Since the ACA and RFRA compel participation in the insurance exchanges and specifically require by law differentiation in funds when it comes to contraception, employers are able to get around the “we will not participate in war(/murder)” arguments that surfaced with (income, SSDI) taxes. The Court reasons that the Government will assume the cost for the contraception (what will “substantially burden” a for-profit employer at $400 million per year the Government will absorb into its already over a $1 trillion over 10 years budget for coverage), and not the employer, and since HHS already handles non-profits separating contraception coverage from other insurance funds, then handling this for for-profits won’t be too much of a stretch (so they say). So, the kind of reasoning that makes me pay for cyberwars, dronewars, and destruction of ecosystems through tax collection doesn’t apply here, and so the “we won’t participate in war/murder” argument goes forward. That is, the Court reasons the Government already has in place legally and practically a least restrictive means of enforcing this law without overriding religious beliefs about murder.

    That is, the Court is explicitly stating that it’s not going to rule on the truth or the science of the religious beliefs, and its ruling is designed to use this indifference to *not* step upon the practices or beliefs of religious believers, while the dissenting opinion would require stepping on those beliefs.

    The insight that this sets up for going to universal coverage through the Government through tax collection is spot-on. The crafting of the ruling further reinforces this binary when it comes to health care: either everyone is free to dissent from murder and the Government won’t infringe on religious beliefs, or everyone is forced to participate in murder and the Government will infringe on religious beliefs.

    Once framed this way, we can see how this argument will continue to play out, the way it has been playing out. These are the terms the argument is being made to and for these particular religious believers. For them, it’s not about reproduction. It’s about their idea that this is murder. That’s what convinces them and fuels their dissent. Government is allowed to infringe on religious beliefs about murder when it becomes difficult to quantify our participation, but if it can be quantified—if we can separate out the dollars going where—then Government is not so free to force participation in something a religious belief forbids.

    So, why not accept the logic that being forced to participate in murder is detrimental to the free exercise of religion, but argue we should extend this to our country’s participation in warring on people and the environment as a violation of our Christian commitments to Turn the Other Cheek? It will help all right-thinking Christians to follow the non-violent model of Christ Jesus, our Lord and Savior who stands in Authority over the government whom we are free to resist if it means turning against the Almighty. We will stand with Christ if we can clearly and unambiguously collect separate funds for the prosecution of war and those committed to free enterprise and social welfare. The Court has reinforced the importance of not infringing upon religious beliefs and provided us with further reasoning for *how* we can not be infringed upon through forced participation in war or torture or murder. {Insert whichever religion applies best}

    They give you the arguments that will persuade them. Use those same arguments to expose the underlying assumptions, and people are more likely to start reflecting on the inconsistencies underneath, as we all have our particular inconsistencies.

  8. They already did. That’s not new. They cover condoms too. It’s the ACA that doesn’t cover either of those. Their contraceptive plan is actually very good in many ways. It covers 16 of the 20 items the ACA requires plus a bunch of other things the ACA doesn’t bother to cover, including the very expensive vasectomy procedure and condoms, which are not covered by most health plans. They just don’t include the four items that gave rise to this case.

    The article you linked to is very strange. It seems to be under the impression that vasectomies are abortifacient or something like that, because it seems to be assuming that anyone who opposes the four kinds of contraception Hobby Lobby doesn’t want to cover will, by the same reasoning, not approve of contraceptives. I don’t see how Viagra or vasectomies could possibly be thought of as abortifacient, though. So it’s a very weird argument.

  9. The argument about Viagra is besides the point because the Supreme Court can’t decide on issues that don’t reach the court. Until some company policy disallows Viagra and finds some religious principle to base that on, we don’t know whether it would be treated differently.
    I am more worried about the religious argument in general, because what stops anyone from establishing a religion which doesn’t believe in healthcare at all?

  10. Keep in mind that the decision didn’t say anyone can object for any religious reason. RFRA law says if someone is expected by law to do something they object to on religious grounds then they have relief is (a) the government purpose is not compelling, (b) the government policy is not the least-restrictive means to achieving it, or (c) the policy doesn’t pose a substantial burden on the person objecting.

    In this case, the court did say it’s a substantial burden. They didn’t comment on whether it’s a compelling government purpose, but they assumed it was for the sake of argument. They said Hobby Lobby avoids having to pay for these four types of contraception through their health plan because it’s not the least-restrictive means of achieving it.

    With a religion like Christian Science Practictioners, who think the physical world is an illusion and propose abstention from all medical treatment, there would be several other issues that come in. One is that they might not be opposed to offering healthcare. They might just be opposed to seeking it themselves. I don’t know the answer to that. But suppose they refuse to pay for health coverage at all.

    At that point, the courts could easily say that it’s not a substantial burden for them to provide it (because the objection isn’t as strong as with Hobby Lobby, who is worried that these drugs might kill, not that they might amount to wasting time and money doing something needless). I’m not sure if there’s much chance that they’d say it’s least-restrictive means. That issue seems parallel. The government could work in some exemption plan where they cover it or siphon it off to the accommodation plan they already have for non-profits (and perhaps Christian Science non-profits are already using, for all I know). There’s even more of a chance for health care coverage in general to count as a compelling government purpose than contraceptive coverage in particular, because it covers a broader range, including life-or-death emergency care. It’s quite possible that even if a later decision says the contraceptive mandate doesn’t serve a compelling government purpose (which I suspect some but not all of the justices in the majority were hesitant about, or they would have visited the question) that they would still think the health care mandate serves a compelling government purpose (or at least that some combination of five justices would think that).

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