cos | Supreme Court contraception decision... differently terrible than it seemed

Supreme Court contraception decision... differently terrible than it seemed

You probably already know that the US Supreme Court ruled in favor of Hobby Lobby, a company that said it violated their religious beliefs to provide health insurance plans to their employees that pay for contraception. After learning more about it, I realize this decision is not quite as horrible as it first seemed in the way that it first seemed, though it's quite horrible in another way.

One of the first things I wondered when I heard about it was, waitaminnit, isn't that totally at odds with the 1990 decision about peyote? In that one the court said that the Constitution didn't protect someone's use of peyote for religious purposes - it was still illegal if the law said using peyote was illegal. Did they overturn that precedent?

But no, they didn't. This new decision is actually not Constitutional. Instead, it's a decision about the "Religious Freedom Restoration Act", a law Congress passed in response to the peyote decision. If the Constitution doesn't give people religious exemptions from otherwise illegal acts they do for religious purposes, Congress decided, we'll just make it so the law gives people such exemptions instead. Yesterday the Supreme Court didn't say Hobby Lobby has a Constitutional right to not pay for this insurance benefit, it said the RFRA (a law passed by Congress) allows them to not pay for such plans.

Under the RFRA if any other law impinges on someone's religious beliefs, they get an exemption unless the law a) advances an important interest, and b) does so in a "narrowly tailored" way - in other words, doesn't impinge on their beliefs more than is necessary to achieve the goal.

At first I feared this means the Court decided providing contraceptive coverage wasn't an important enough state interest, but that's not the case. Rather than saying that providing contraceptive coverage isn't a valid state interest, they said that it can be achieved in a different way: Either the government could make insurance companies pay for the contraceptive coverage for employees of companies who sought an exemption, or the government could just pay for that contraceptive coverage directly. Doing either of those would have the full desired effect: Every health insurance plan would cover contraceptives. Since the government can achieve this goal without requiring these companies to pay for it, that means under the RFRA that these companies cannot be required to pay for it.

In that sense, it's a "narrow" decision, and may be easily fixable. The Obama administration already offered a deal to churches and religious nonprofits that sounds like what the court said it could do legally for companies like Hobby Lobby, so presumably they can expand that deal to include these companies. (There's another court case in the works challenging even that, so we'll see...*)

Here's what's fucked up:

1. That anyone would claim a religious objection to contraception seems like a ridiculous anachronism in the 21st century US. It wouldn't be happening if we didn't still have an awful lot of devaluing of women in our culture.

2. Unlike the peyote case, where someone was being penalized for participating in a religious ritual, this case isn't about the actual practice of religion. It's about employees choosing to use their compensation in a way the employer objects to; the employer isn't actually doing so. This seems crazy to me. Compensation for a job is money or other financial value given to the employee, which they can then choose to use however they want. Morally and logically, this seems no different from letting an employer tell you what you can't spend your wages/salary on!

... but here's the worst part:

3. When the RFRA was passed in response to the peyote case, the hubbub was about people and their right to practice their religion. Now the Supreme Court has decided that some corporations can also have religious beliefs, and thus have the same rights under the law. For-profit corporations can have religious faith!!

The whole point of incorporating is to shield the individuals who run the corporations and/or own it from legal liability and financial risk from what the corporation does. Yet somehow the Supreme Court thinks that separation between the individuals and corporations doesn't always apply in the other direction when it comes to religious beliefs.

So... we can get contraceptive coverage back, probably, without even needing Congress (and we certainly could with an act of Congress). But this ongoing trend of the Supreme Court giving corporations more and more rights and benefits that were intended just for actual people is going to be much harder to reverse.

Edit: Move to Amend is the coalition trying to reverse this trend of excessive corporate rights. You could sign their petition and join their email list.

Edit2: I really like this blog post, which makes some of the same points, and gives more of a legal analysis (in an easy to read manner).

*Edit3: Supreme Court is indeed signalling, in that second case, that they may throw a wrench into the workaround: Wheaton College injunction: The Supreme Court just sneakily reversed itself on Hobby Lobby

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The whole point of incorporating is to shield the individuals who run the corporations and/or own it from legal liability and financial risk from what the corporation does.

that's what stuck out for me also. commentary i've read on the case emphasizes that it's the owners' religious rights that are impinged on. i wonder if standing on those rights will give someone an opening to say they're not really acting as a corporation at all-- and thus are personally liable for the company's deeds and debts. i imagine there will be an incentive for some ambitious lawyer to find out.

i also keep seeing them referred to as a "closely held" corporation, which presumably is relevant somehow. has the supreme court just changed the definition of closely held corporations?

That anyone would claim a religious objection to contraception seems like a ridiculous anachronism

that women still need permission from their employers to use their chosen form of of contraception-- that the employers are involved in any way-- seems bizarre to me. but it's an artifact of the weird ways we have chosen to structure healthcare... and this whole mess is part of our ongoing attempt to change those weird ways. i sympathize with the cries to use this as a reason to finally make hormonal birth control over-the-counter. but there are still methods that doesn't help for.

> i also keep seeing them referred to as a "closely held" corporation, which presumably is relevant somehow.

It's relevant in that it allowed the Supreme Court to say that closely held corporations can have religion and get religious exemptions under the RFRA, without saying whether other corporations can also have religion. So, we don't (yet?) know if the court would apply this reasoning to all corporations are just some corporations.

"The Internal Revenue Service defines a closely held company as a corporation that has more than 50% of the value of its outstanding stock directly or indirectly owned by five or fewer individuals at any time during the last half of the tax year."

(from http://online.wsj.com/articles/hobby-lobby-ruling-begs-question-what-does-closely-held-mean-1404154577 )

Limiting the ruling to closely held corporations is hardly a limitation at all- about 90% of US corporations are closely held.

Yeah, I didn't think that part was especially important either (which is why I totally left it out of my post). We don't even know if that's a limit they'll stick to if some non-closely-held corporation brings a similar case.

Yes, but I'm betting that 80% (and maybe as much as 90%) of employees who work for corporations work for non-closely held corporations.

Assuming we can use SMEs as a proxy for closely held corporation (which seems reasonable enough given minimum sizes for equity sale and the relative rarity of venture capital-owned enterprises), not really. As of 2010ish, 68% of people in the US worked for SMEs. (Source, section 2.2) I am honestly too lazy to track it down more closely than not, but be wary of over-estimating the impact of publicly owned corporations.

52% of private sector employees work for closely held companies.

(oops, obviously I meant: "we don't (yet?) know if the court would apply this reasoning to all corporations or just some corporations")

It seems odd because it's not true. Women do not need their employer's permission to use contraception. They need their employer to purchase a health insurance plan that includes contraception coverage in order to get contraception free or cheap under that plan. If the employer instead purchases a health insurance plan that does not include contraception coverage, the employee must buy it with her own money.

you're right, i spoke imprecisely. women do not need their employers' permission to use contraception, but most women will find that many contraception options become either easily affordable or very expensive, at their employers' choice. which is not the same as needing an employer's permission; but at the margins it looks pretty similar. and still seems weird to me.

This is the most horrifying thing to me, too. Since when do corporations get to have religions? The point of the corporation is to provide a limited legal entity distinct from its owners. The owners are only supposed to be able to enforce their beliefs to the extent that it's legal. Don't want to open the shop on Sunday, fine. Want to discriminate against women because the bible said so, not fine. This is a sneaky furthering of assigning human rights to corporations, which given corporations are vastly more powerful than all but a few people on the planet, is not a path we want to go down.

"It's about employees choosing to use their compensation in a way the employer objects to"

Pretty sure this is inaccurate. It has nothing to do with what employees may or may not do. It's about what sort of insurance companies must purchase for their employees.

I wouldn't call that "inaccurate", though perhaps you object to the point I'm making. Employer-paid health insurance premiums are most definitely compensation. When employees who are covered by a plan choose to use contraception, they are choosing to use that coverage with was paid for with compensation for their work, in a way their employer objects to. The employer neither used birth control nor chose to use it nor directly paid for it; the employer paid money which purchased health insurance coverage for the employee who then chose to use some of that coverage for contraception. This is even more indirect than if they'd directly used the money the employer gave them (in the form of wages or salary) to buy birth control, because in this case it isn't even the money from the employer that's being directly used for contraception.

"the employer paid money which purchased health insurance coverage for the employee who then chose to use some of that coverage for contraception"

Yes, this is accurate. I do not think what you wrote above means the same thing as this.

"This is even more indirect than if they'd directly used the money the employer gave them (in the form of wages or salary) to buy birth control"

I don't agree. Imagine there are two diners I can contract with to provide my employees with lunches: one that serves pork, and one that does not. If I contract with the one that serves pork, and pay them, say, $5/lunch regardless of what my employees order, some of those employees will order bacon and I will have paid for that bacon. I will have purchased bacon for human consumption. What if I think eating bacon is immoral? Crap; I have contributed to something immoral. Maybe I'd rather contract with the one that never serves pork, or maybe I'd like the pork-serving one to offer my employees pork-free choices. But once I've paid my employees their wage, and they go buy pork out-of-pocket, that no longer has anything to do with me. I'm not buying pork; they are.

In your diner example, the employer is directly paying for the lunch, but giving the employee a choice of what lunch to order. If they choose to do that - for example, paying a per diem for a traveling employee - they can either tell the employee "we'll only pay for meals meeting these characteristics" or alternately decide make limits by choosing which establishments the employees can be reimbursed for meals at. If the employer is directly contracting with a diner *and* directly paying for the meals, I think people would be quite understanding if they chose a diner that doesn't serve pork; that's rather unobjectionable.

But this comparison is pretty far from health insurance. With health insurance, the employer is *not* directly paying for any services the employee gets reimbursed for. The employer is paying a health insurance premium, which is used to purchase insurance. Later on, the employee gets benefits from the insurer. It's not a case of oh, Sarah's employer paid $N dollars for Sarah so we'll reimburse her for $N worth of services; insurance doesn't work that way. Someone's premiums aren't directly transferred to the services they buy, nor do the premiums directly correspond to any particular health services.

When a company pays a salary, they don't get to say "we'll give you special money that can't be spent on certain things". This is the same thing. Just as the government can set standards for wage & salary compensation (such as minimum wage, rules about back pay for vacation, etc.) it can also set standards for health insurance compensation. If a company chooses to hire people and provide health insurance as compensation, it needs to buy something that legally qualifies as health insurance. But that doesn't mean that the company is now paying for all of the health services their covered employees get from that insurance.

Sorry, didn't mean to post my reply anon. Stupid new LJ UI.

I really appreciate the fact that you seem to understand the case, as well as the giant clusterfuck that RFRA is. I would make a couple of points:
1. This actually isn't about how employees use their own compensation. It's about what a company is being forced to pay for by the government. Imagine that the government decided that every student in every school in the US should have a bible, and as such, every American was required to buy 1 bible that would be donated to a student. I would be opposed to that on multiple levels. The students who receive the bibles can have their own arguments for or against, but it's the other side of the coin.

2. The reason why the idea of a closely held corporation is important is connected to passing the test of "sincere belief". Hobby Lobby is a horrible example, and where the government screwed up. If they hadn't waived the argument early on, we probably wouldn't be having this discussion, especially considering that many Christian groups have been lambasting them for "unchristian" behavior. A corporation is required by law to try to make money for their shareholders. In order to pass the test of sincere belief (for a person or a corporation) they have to prove that they are acting in furtherance of that belief, which usually involves making less money. Therefore, having more than 5 shareholders makes it really difficult for every one of them to agree that furthering the religion of the company trumps making money.

3. If it weren't for the fact that the government was already throwing around exemptions left and right they probably could have argued "compelling interest". Instead, they just get the same classification for exemption that also belong to churches, and any company with fewer than 50 employees.

Personally I say that employers shouldn't be in the insurance game at all. Repeal RFRA, amend the Dictionary act, and let's get back to single payer. That way, we can just say that any treatment that has been approved by the FDA is covered in your insurance. I appreciate the fact that the last statement is simplistic and also problematic, but it's a nice idea.

> This actually isn't about how employees use their own compensation.

It absolutely is.

Employee pays a health insurance premium, which is a financial benefit, and provides the employee with a health insurance plan. Employee then *chooses* to get contraception, which the health insurance plan (not the employer) pays for. Trying to draw some tangled web of reasoning wherein the above is morally equivalent to the employer actually using contraception, but if they employee pays for that same contraception out of wage/salary money from the same employer than that is not morally equivalent? That web is not close to reasonable.

You only accept that kind of reasoning if you really *want* it to be true a priori, IMO ... or if you accept the voice of an authority (like the Supreme Court) that really wanted it to be true, and assume that since they decided it there must be some reasonableness to it. There's not a slight whit of reasonableness to it, by a very very very long shot.

> The reason why the idea of a closely held corporation is important is connected to passing the test of "sincere belief".

Yeah, I'll believe that when the Supreme Court rules that other corporations *cannot* get this kind of exemption. They haven't said that. Even if they do say that, it's still not very important, considering how many "closely held" corporations there are and how large some of them are, but given the fact that we don't even know that this idea is limited to those corporations until the next court case comes along, it's even less important for now.

> If it weren't for the fact that the government was already throwing around exemptions left and right they probably could have argued "compelling interest".

I don't understand what you mean here. "compelling interest" didn't get struck, there was (in hindsight) no point in arguing it. As long as there's another way to achieve the same interest, and that other way is less intrusive on religion, it makes no difference at all under the RFRA whether it's a compelling interest or not; you still have to take the other way. Did I misunderstand something about the RFRA here, or do I not get what you're trying to say?

Edited 2014-07-01 21:07 (UTC)

Thank you for iterating so well. May I share these words with others (oral, not written)?

Certainly. Thanks!

Yeah, this is essentially what I meant when I said the RFRA is going to turn out to be the biggest example of the Law of Unintended Consequences in a very long time.

It's also worth noting that the majority of SCOTUS cases do not involve Constitutional issues. They are the court of last resort on all kinds of issues and are called on to adjudicate all sorts of US laws. This is one reason why the Solicitor General is always admitted as amicus and the Court will often seek an opinion from the S.G.'s office in cases where the government is not involved.

That anyone would claim a religious objection to contraception seems like a ridiculous anachronism in the 21st century US

That's a remarkably parochial attitude. I believe that the majority of religions practiced by people who consider themselves religious have some form of restriction on contraception they find objectionable. Many sects of Islam, Catholicism, and even Orthodox Judaism have prohibitions on the unfettered use of contraception. Even in this case, Hobby Lobby is not objecting to all contraception. They specifically objected to four forms of contraception that they (mistakenly, imo) believe implicate abortion.

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