Abortifacients, ACA, Contraception Mandate, Corporate Form, Hobby Lobby, Obamacare, Supreme Court
Some are apparently too lazy, propagandized or ignorant to understand the facts underlying the Supreme Court’s Hobby Lobby decision. But not too lazy to re-tweet or re-post unreliable information.
Here is what the decision means:
1) The decision was narrower than the sloppy memes and some media reports would have you believe. Of the 20 different contraceptives approved for use by the FDA, only four are affected by the decision. Hobby Lobby offers the other 16 through its employee health plan, and it will continue to offer them. The four it is no longer required to offer through its plan are so-called abortifacients, which destroy an already fertilized egg. The ruling does not imply that Hobby Lobby can avoid covering other “mandated benefits” under Obamacare, including the other 16 contraceptives. (In my view, however, the entire coverage mandate should be struck down as well, keeping employer-provided health care benefits a private contactual matter. The specifics of the mandate were not part of the ACA legislation. They were promulgated by bureaucrats at HHS for whom overreach has no meaning.)
2) In general, when individuals decide to associate or act under a corporate form, the corporation assumes the rights they possess as individuals. Human action taken under the corporate form does not involve a diminution of individual rights. Yet the left acts as if people have no rights when acting under the corporate form. Incorrect. Speech, religion — all rights that are granted to individuals under the Constitution are guaranteed to them whether they act as a corporate association or not.
3) The decision in Hobby Lobby applies only to closely-held corporations, the shares of which are not publicly traded. These are not the “faceless corporations” of popular infamy, but are often family-owned companies, associations of partners, or professional practices. Publicly-traded corporations are not affected by the ruling. Only privately-held corporations with more than 50 employees (under the original provisions of the ACA) are affected.
4) The decision does NOT interfere with womens’ rights to obtain most contraceptives. It means that the government cannot force Hobby Lobby to pay for abortifacients, and female employees have an unrestricted right to pay for abortifacients out of their own pockets. They are employed, after all. In addition, the ruling has nothing to do with coverage of abortion procedures that might be necessary when a mother’s life is at risk.
5) The government is not restricted, except as a possible matter of politics, from offering all women free access to abortifacients. It has not offered to do so, however. Therefore, under the 1993 Religious Freedom Restoration Act (RFRA), signed by President Clinton, the Court held that the government cannot impose any burden on private parties (including individuals organized as closely-held corporations) in violation of their religious beliefs if there is a less burdensome alternative available. The RFRA’s importance to the Hobby Lobby ruling is discussed here.
6) Some have accused Hobby Lobby’s owners of hypocrisy, since they sell goods imported from China, where abortion is often coerced by the state. And that might be hypocritical, but the only possible relevance to the case would be if the purchase of Chinese goods reflected on the sincerity of their religious beliefs. That is a litmus test that few would sanction. A beauty of private markets is that they tend to be impersonal, allowing individuals of different cultural practices and beliefs to trade peacefully with one another if they so desire. That has no bearing on the type of labor contract that Hobby Lobby may offer its own employees. In any case, the ruling applies more broadly than to Christian importers of Chinese goods.