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The Hobby Lobby argument

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Today The United States Supreme Court is hearing oral arguments in the case Sebelius v. Hobby Lobby Stores, Inc. At issue is whether the company, technically publicly held but principally owned and operated by the original founding family, has the rights of freedom of religion that might be accorded to individuals or specifically religious organizations such as churches. The application of the question concerns the "contraceptive mandate" of the health care law, which requires that employers provide medical coverage for employees, and that such coverage includes payment for various medical procedures which members of some faiths regard as "wrong". The obvious one is abortion, which despite its legality is still viewed as murder by many Americans. (In general, the majority of Americans believe that abortion is the killing of a human being, but that those who do not believe it to be the killing of a human being should not be restricted by the beliefs of others.) Although it is a technicality of semantics, abortion is not contraception; it is "birth control" in the most direct sense of preventing life which has been conceived from being born. Second on the list are the "morning after pill" and "intra-uterine device" (IUD), both of which are called "contraceptive" and do interfere with conception, but which have a secondary (or possibly primary) function of preventing implantation, that is, making it impossible for the zygote that has already grown into a blastocyst to connect to the uterine wall and maintain that connection long enough to become what we have defined as "viable" (which technically means a living organism capable of surviving without the aid of another, a vague enough definition that it excludes most of my readers and probably, at this point, myself).

What Hobby Lobby asserts is that some of these "medical" procedures (all of which would have been condemned by Hippocrates) violate the religous views of the primary stockholders and management of the corporation, and therefore the corporation ought to be exempted from having to pay for what they, the owners footing the bill, regard as the murders of innocent babies. From their perspective, it would be similar to requiring them to pay the cost for their employees to hire professional assassins to murder their spouses. They should not be forced by the law to become accomplices to murder, even if they are excused from culpability for the crime. After all, we give "conscientious objector" status, excusing individuals from compulsory military service who object to killing enemy soldiers, and it extends to include excusing them from non-combat positions on the ground that their involvement in such positions facilitates the killing by freeing some other individual from such non-combat duty and so putting them in a position to kill.

Organizations already registered as non-profit religious organizations under the tax laws may opt out of covering "contraceptive" coverage by claiming religious objections; the Catholic Church, for example, does not have to pay for abortions for its priests and nuns. That actually does not mean that these people are not covered--under the law, the insurer must cover them directly at no additional cost, which technically means that whenever an individual organization opts out of paying for such coverage, the price of medical coverage rises for everyone so as to provide a fund to cover such services. What is at stake in the present case is whether this ought to extend to the religious beliefs of employers in for-profit companies. The Hobby Lobby situation is important because it is something of a middle ground: it is a publicly owned corporation, but primarily owned and controlled by a core group who are agreed in their religious objection. If the Court decides that they should be able to assert the equivalent of a conscientious objector status, that will automatically cover the many sole proprietorships, partnerships, and limited liability corporations owned and operated by individuals or groups who have similar objections; if the Court decides against them, the question will remain concerning what standards a publicly owned corporation must meet to obtain an exemption from covering this (which if too broad would probably negate the point: since the insurers have to charge everyone more to cover the non-payment for these services by some, as the pool of those who do not pay directly grows, the base cost of the insurance coverage also grows for everyone including the exempt, to cover such "covered unpaid" expenses), but those other more closely-owned companies might still be exempt.

That might be the fatal element here: if a corporation need only assert that it has conscientious objections to paying for contraceptive coverage, then very few will not do so, simply because it becomes a cost savings decision and has no impact on employee benefits. If you ask a corporation whether it would rather pay for a benefit for its employees or have someone else pay for that benefit, it will make the same decision you would: take the free route, save the money. Exempting Hobby Lobby, while it makes sense from the viewpoint of the religious convictions of the owners, creates the problem of creating regulations that define whether a publicly owned corporation actually holds a specific religious view that ought to be respected, or merely chooses to make such a claim in its own financial self-interest.

Decisions usually take at least several weeks, sometimes months, so patience will be needed.

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