Lincoln * Institute

Colin A. Hanna

Colin A. Hanna

Let Freedom Ring, USA


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Let Freedom Ring

The Hobby Lobby Case

by Colin Hanna

This week the Supreme Court affirmed the right of the owners of a closely-held corporation, Hobby Lobby, not to include in the health insurance plans they underwrite for their employees certain medications and devices that they believe cause the killing of a fertilized egg, something impermissible in their understanding of Christianity. It's a decision that has been egregiously misrepresented by those opposing it. Let's try to sort out some of the facts of the case.

First of all, the actual bill passed by Congress officially known as Affordable Care Act and popularly referred to as Obamacare did not say anything at all about contraception. It simply referred to "Minimum Essential Coverage". It was the Obama Administration's Health and Human Services Department that, almost a year and half after the bill's passage, chose to include what it called contraception as one element in its administrative definition of minimum essential coverage. The reason that I said "what it called contraception" is that the specific forms of birth prevention mandated for inclusion in Obamacare go beyond many people's understanding of contraception. The world contraception means contra, or against, conception. In other words, preventing conception, or the fertilization of an egg. There were 20 forms of birth prevention listed by HHS as minimum essential coverage. 16 of the 20 are properly called contraceptives in that they prevent the fertilization of a human egg cell by a sperm cell. The remaining 4 of the 20 prevent the attachment, growth and development of an already fertilized egg. For the Green family who own Hobby Lobby, they cause abortion by blocking the fertilized egg from implantation in the uterus. Two of the four are medications commonly called the morning after pill or the week after pill, and the other two are intrauterine devices.

Very few stories on the decision mentioned that the Green family did not object to the other 16 listed forms of contraception. In fact, they had provided coverage for them well before Obamacare. So the popularly-held belief that Hobby Lobby was denying their employees insurance coverage for things like birth control pills is completely false.

Many other stories on the decision focused on Hobby Lobby as a corporation. One of the opponents' favorite arguments is that the First Amendment protects the rights of individual persons, not corporations. That argument is also entirely without merit. There are hundreds of thousands of corporations whose rights of religious freedom have long been acknowledged without objection. They're called churches. Almost all churches are organized as corporations. So it's ignorant to argue that the corporate form excludes any right to religious freedom. Another objection focuses on the fact that Hobby Lobby is a for-profit corporation. On what Constitutional basis can the argument be made that rights are diminished merely because commerce is conducted?

Some opponents introduce the slippery slope argument — that the Hobby Lobby decision could easily lead to denying transfusions to employees of companies owned by Jehovah's witnesses or all medical care to employees of companies owned by Christian Scientists. This completely ignores the fact that Supreme Court decisions are made on a case by case basis, and that certain practices that claim to be associated with religion clash with others' rights that they cannot be permitted. One example is the 1990 decision that invalidated the claims of peyote-smoking Native Americans who claimed that their practice should be permitted on religious grounds even if it violated drug laws.

Finally, the Hobby Lobby decision involved a closely-held corporation, owned by a few deeply religious individuals. It's not at all clear that the Supreme Court would have given Hobby Lobby an exemption if it had been a widely held public company whose chief executive had a religious objection to abortifacients.

In short, the slippery slope arguments proffered by the likes of Hillary Clinton are long on emotion and short on reason. The decision was a close one, and therefore it should be no surprise that it was decided by a single vote, but it was also a sound one that reaffirms one of the Constitution's most cherished rights.