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Hobby Lobby: The key points

Hobby Lobby stores at center of abortion controversy
Hobby Lobby stores at center of abortion controversy
Photo by Justin Sullivan/Getty Images

Much noise has been raised about the recent Hobby Lobby decision (Burwell v. Hobby Lobby Stores, Inc. et al., 573 U.S. _____ (2014)) by people who either have not read or have not understood the opinion of the court. This has been complicated further by similarly ill-informed noise about the subsequent Wheaton injunction (Wheaton College v. Burwell, 573 U.S. _____ (2014)), in which even the dissent seems to fail to grasp the point. Having carefully read the opinions in both cases, I hope to shed a bit of understanding on it.

The first point to make is what is not involved here. Hobby Lobby is not refusing to provide all contraceptive coverage in its health plan; it is objecting to four specific so-called contraceptives which are not contraceptive, that is, which do not prevent conception, but which by some definitions are abortofacient. All other FDA-approved contraceptives are and have been covered in its health plan. The Affordable Care Act does not make covering abortions mandatory; in fact, the law as passed does not contain any specific coverage of contraceptives at all--it includes a general rider requiring an administrative agency (bureaucrats) to determine what coverage is generally necessary for women's health, and that agency has identified twenty forms of such contraception. Four of those are controversial, opposed by many persons who define their action as causing spontaneous abortion. Further, the Court ruling that Hobby Lobby does not need to pay premiums for this coverage does not mean that their female employees will not have the coverage; the point is specifically made that religious non-profits have already been given a means of being exempted from paying for the coverage, and Health and Human Services has a system in place specifically to provide such coverage to employees of such corporations, easily extended to cover cases like this one.

The contraception problem is definitional here, so we need some definitions. Conception occurs when a spermatozoon penetrates an ovum; at that point all the genetic material for a human being is organized, and growth begins. Within hours this single-celled zygote becomes a multi-celled morula, and by the fourth day it is a sphere of cells called a blastocyst. Generally when it is six days old it will find the uterine wall, where implantation occurs. This begins changes in the chemistry of the mother's body, but present technology cannot detect these prior to the tenth day; the child becomes an embryo by day fourteen, and during its eighth week it becomes what we call a fetus. Some of these words are used more generally, but they are simply stages in development not different from distinguishing an infant from a toddler or an adolescent from an adult--somewhat arbitrary but based on definable characteristics.

The problem with these four birth control methods (the best known being the "morning after pill" and the "intra-uterine device" or I.U.D.) is that they do little to prevent conception; nor do they interfere with the early development of the child for the first week--up until the point where implantation should occur. These technologies prevent implantation, thus preventing the child from connecting to the vital source of nourishment that will enable it to develop into an embryo and leaving it to die--much as seeds sometimes sprout in packages but absent earth or water wither and die. Health and Human Services argues that they are not abortofacient because an abortion requires separating the child from the uterine wall after implantation, and these methods prevent implantation from occurring. Obviously, though, if you believe that the zygote is a human child, preventing implantation is as much killing the child as locking an infant in a room without food and allowing it to starve to death. We can argue that the blastocyst feels nothing, and therefore we are not being cruel, but it is still killing a human life, given these assumptions.

Of course, not everyone agrees with that assessment. It is the law in these United States that if you are pregnant and wish not to be, you can "terminate the pregnancy", ending the life of the child because it is not deemed to be a human life yet. Some health care plans will cover that through several months of pregnancy. Yet we also recognize that some people regard that to be killing children, and they ought not be required to be involved in the process, such as by paying the medical bills of someone who has decided to do so.

The owners of Hobby Lobby hold such a view. That is, they regard the prevention of implantation as the equivalent of murdering a child. They further argue that requiring them to include in their employee health insurance coverage money to pay for such procedures makes them accomplices to the murder. We might analogize it to requiring a company to maintain a fund for employees to use to cover the costs of hiring criminal assassins when they wish to eliminate problematic family members--the owners of the company might well be perceived as accessories to murder in such a scenario, and even though in this case the killing is legal, the employers believe it to be immoral.

The problem of course is that Hobby Lobby is a rather large corporation employing hundreds of thousands nationwide; yet it is what in law is called a "close corporation" or "C Corp", having a very limited number of stockholders in this case all members of one family and one church. There are not hundreds of stockholders, but perhaps a score; and the corporation itself has a statement of faith as part of its charter documents. The dissent argues that corporations exist for no purpose but to make money, but the court's opinion argues credibly that corporations can be organized for any purpose, and the purpose of conducting business in accordance with the principles of a religious view is not excluded from that. For a non-controversial example, Hebrew National exists to produce food products which accord with the dietary rules ("kosher") of Judaism, and so produces no pork or shellfish products.

The opinion also suggests that the system already in place to provide such services to the employees of religious non-profit corporations would preserve the government's interest and protect the religious interests of Hobby Lobby--in other words, that the government already has a means of providing these services for employees whose employers object on religious grounds, and extending it to cover cases such as this one costs little and preserves the religious interests of the employers. That system suggests that insurers will provide, under separate coverage, free contraceptive services to women not covered for these under their employee health plans, and that doing so will save them money--after all, even a thousand dollars to cover an I.U.D. is a fraction of the medical costs of a pregnancy. Since Health and Human Services can easily provide the coverage it deems necessary without requiring the conscientious objectors to pay for it, Hobby Lobby ought to be excused from doing so.

The Wheaton case is about a different issue, and so was decided differently based on that issue following from the same rationale. We will cover the logic involved and address that case next week.

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