The recent Hobby Lobby decision has kicked off a wave of partisan acrimony among the political class and the social media twitterati. As I wrote before it was a narrow decision with little that should surprise or agitate anyone except the extreme partisans. The job of the Court is to properly apply relevant law and precedent, not to concern themselves with which side they want to support. Much of the opposition to Justice Alito’s majority opinion is based on narratives of gender identity politics and class conscious opposition to corporate person hood. This is immaterial to the facts of the case, regardless of how any justice personally feels about it. With that let’s run down the 9 reasons the Hobby Lobby case was properly decided.
9. Corporate personhood
Corporations and other legal entities and associations have had recognized personhood status since the 1800s. In Trustees of Dartmouth College v. Woodward – 17 U.S. 518 (1819) the Court found that corporations, as collections of individuals, had the same natural rights as individuals. This line of reasoning has been reaffirmed and expanded by multiple decisions since that time. Thus, extending the religious protections of the family that owns Hobby Lobby to their corporate entity is in line with long established legal precedent.
8. Narrow Decision
Perhaps being sensitive to the “slippery slope” argument, and I suspect to get a majority of votes, Alito only applied his decision to “closely held corporations”. These are generally private corporations owned by five individuals or less. He not only excluded publicly traded companies and non profits, but also said things like vaccinations had a different public safety standard and so were also excluded from a religious exemption.
In 1993 Congress passed the Religious Freedom Restoration Act., sponsored by Democrats but passed with bipartisan support. The bill was intended to let Indians smoke Peyote as part of native religious ceremonies. The law requires government to meet its objectives in the manner least restrictive of religious freedom. Since there are other methods available to accomplish the government’s goal of expanded access to contraceptives, the birth control mandate failed this test. Justice Alito even suggested they could just make birth control a social benefit paid for by government and be done with it.
6. Not part of ACA
The employer mandate to provide coverage for birth control was not part of the original text of the Affordable Care Act. Birth control coverage was an HHS interpretation added later during the regulatory process. The mandate was specifically left out of the text of the bill to secure the votes of pro-life Democrats.
5. Hobby Lobby still provides birth control
Hobby lobby still provides 16 of the 20 FDA approved contraceptives. They only object to 4 methods that they believe kill a viable embryo or prevent a potentially viable embryo from attaching.
4. No restriction
The notion that females suddenly don't have access to contraception is false on its face. (unless you assume that women only have access to things a man buys for them) Hobby Lobby employees who want the 4 contraceptive methods not supplied by their employer are still free to purchase them on their own.
3. Not a private matter
Female contraception is a private healthcare issue, not a political one. At least it should be a private health care matter. Once you make something a public political issue by having the US government instruct employers they must pay for it, that thing ceases to be a private matter. A regulatory mandate is anything but private. That's how it works; if you don't want things to be public or political don't use the very political force of government to mandate them.
2. Not pushing religion
I am not religious nor do I want religion pushed on me. However, the notion that Hobby Lobby not paying for something with which they disagree on sincere religious grounds is equivalent to pushing their religion on others is just silly. If they tried to bar their employees from using birth control it would be different. Technically it is the reverse. The Feds in this case were infringing upon the family that owns hobby lobby by placing on them a burden which forced them to violate their sincere and well established religious belief.
1. Manufactured issue
President Obama could end this controversy tomorrow by doing what Alito suggested and making the government or insurance companies pay for these birth control methods with no bill back to the employer. The main reason the RFRA was violated (and Hobby Lobby won) is because government has other, less restrictive, methods available to meet the same objective. If Obama cares so much about women why is he not paying for their birth control?