Thirteen miscellaneous thoughts on the Hobby Lobby case and the reactions to it

July 8, 2014 – 11:26 pm by John

"To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical."
—Thomas Jefferson

Other than the absurd necessity (and apparent futility) of explaining that a government's failure to mandate something doesn't equate to outlawing it, nor does it enable other people or entities to bar anyone's "access" to it, I had a few more thoughts in response to specific things I've read about the recent Hobby Lobby and Conestoga Wood Specialties cases, in which the Supreme Court decided in those companies' favor.

1. "Paying twice"
Some commentators on the left object to women now being forced to "pay twice" for certain contraceptives that religious objectors can now opt out of covering in company benefit packages. Their reasoning is that those female employees must pay full price for their monthly insurance premium, a full price that covers every legal contraceptive for some Americans but only covers, say, 16 out of 20 for employees of closely held religious corporations. They pay full price for their insurance and should be covered for everything, but now thanks to the religion of their employers and the Supreme Court's ruling, they have to pay out of pocket for any of the other four contraceptives without getting a discount on their insurance.

I haven't heard this objection very widely or frequently, but we can safely assume it is valid for the sake of argument because it is simple to answer: First, get the government out of the business of mandating insurance benefits, and the market will take care of the supply, demand, and pricing of every insurance plan. Second, uncouple employment from health insurance, and a third party's (your boss's) opinion will never matter again. If a consumer and a supplier can't reach an agreement on the nature and price of an insurance policy, then no transaction will take place. If the two do agree on benefits and price, then the transaction will take place. This happens with all other goods and services where it's allowed to; car insurance is a good example of the ease with which certain types of coverage can be added and subtracted, and car insurance is even heavily regulated—but not nearly as heavily regulated as health insurance, especially now!

If it is illegal or more difficult for an employer to contract with multiple insurance companies to make sure all of the employees are offered all the benefit and pricing options that they want, then the solution is to get rid of those laws, as libertarians have been saying for over half a century. If the coupling of employment to health insurance puts an undue burden on Hobby Lobby's female employees (as it must, because it puts an undue burden on everyone), then the solution is to abolish the tax laws that have made this coupling financially beneficial, as libertarians have been saying for over half a century.

What is sadly ironic about this "now some women must pay twice" objection is that the left-feminists who have made it are among the staunchest cheerleaders for Obamacare, the very legislation that has forced this conflict onto previously peaceable parties. Since they are constitutionally incapable of admitting that Obamacare with its politically decided minimum benefits is the entire cause of the problem, they have no option but to resort to their old standby of using the police power of government to force conscientious objectors to comply. The solution to the contraception conflict is not to use ever-more police power to enforce ever-more laws on everyone; the solution is to let people buy and sell what they want at mutually agreed upon prices, like the free human beings that they are.

It is also relevant that the text of the Affordable Care Act does not mandate any minimum coverage; the bureaucrats and lawyers at the Department of Health and Human Services made those decisions. Since the left-liberal feminist cheerleaders of Obamacare were fine with that, they should be fine with a future Republican president and Christian-conservative secretary of HHS who mandate that no supposed abortifacients be covered under the federally mandated benefit packages (or some other right-wing type of mandate). But they won't be. Because they're hypocrites.

Speaking of hypocrites, one of the main purveyors of the "paying twice" objection is Amanda Marcotte, who had no objection and actually celebrated hundreds of thousands of Americans' insurance premiums going up because of Obamacare:

So to review:
Paying hundreds more per year for an individual or family health insurance plan because the government outlawed your plan: Great! You should thank them!
Paying a few dozen extra dollars here and there for emergency contraception because the very same law supposedly makes you pay twice: WAR ON WOMEN.

UPDATE: Now I learn that not only was my instinct right that women aren't actually paying twice for contraceptives, they might not even be paying once. The provisions of the ACA that went into effect on September 23, 2010 mandate that all new insurance plans cover certain preventive care, including women's contraceptives, without charging a co-payment, co-insurance, deductible, or other out-of-pocket expense. (E.g., see here, here, and here.) So instead of paying for contraceptives through insurance premiums and some type of out-of-pocket payment, the women affected by ACA now pay for them only through their insurance premiums. The pharmaceutical companies and the pharmacies themselves will be paid in full for their products and services, so the employer and/or insurance company is required to cover the rest of that cost. This results in higher costs for everyone except the contraception users, in direct contradiction (surprise) to Marcotte et al.'s claim. Either everyone's insurance premium goes up to cover those formerly out-of-pocket expenses, the employer covers them somehow, or the insurance company covers them somehow. I wouldn't be the least bit surprised if some taxes are used to subsidize the insurance companies' losses on these items in some way or another.

So while it is still theoretically possible for some women (e.g., Hobby Lobby employees) to be charged full price for an insurance premium while not receiving all the benefits that employees of other companies get, the facts remain that (1) if this even does occur, it would be the fault of the inflexible, over-regulated health insurance market and the politically entrenched insurance companies, the solution to which is freeing up the market; and (2) millions of other people are over-paying for millions of other women's contraceptives thanks to the ACA, and I don't hear any left-feminists crying "foul" at that.

2. The Hobby Lobby decision doesn't go far enough
This is Sheldon Richman's spot-on interpretation of the ruling and the circumstances surrounding it. His reasoning explains why the solution to problem #1 above isn't more government and more police but rather more markets and more freedom.

I wish the court could have said this instead: (1) No one has a natural right to force other people to pay for her (or his) contraception or anything else (with or without the government’s help), and by logical extension, (2) everyone has a right to refuse to pay if asked.
A group of politicians cannot legitimately have the power to compel one group of people—employers, taxpayers, or insurers—to pay for things that another group wants. That’s immoral, and it violates inalienable rights. Moreover, when government has the power to issue such commands—always backed by force, let us never forget—it sets off a mad interest-group scramble for control of the government machinery—because control is a license to steal. Is it any wonder that people are willing to spend billions of dollars to influence who makes government policy? If people face the alternative of controlling the government or being controlled by it, those who have resources will buy power and influence, even if only in self-defense.

Supporters of the Affordable Care Act (ACA) say the court decision permits the favored employers to make health-care decisions for women. No it doesn’t. It only prohibits, unfortunately in only a narrow set of cases, women from being able to use government to force their employers to pay for those decisions. When did we start equating the right to buy contraceptives—which hardly anyone disputes—with the power to compel others to pay? It is demagogic to insist that prohibiting the latter violates the former.

Equally ridiculous is the claim that if employers choose not to pay for their employees’ birth control, employers are forcing their religious beliefs on employees. If that were true, it would also have to be true that a non-Christian’s refusal to pay for a Christian’s transportation to church on Sundays would be equivalent to forcing the non-Christian’s religious beliefs on the Christian. That’s ridiculous.

A lot of people on the left have sort of snarkily or sarcastically said, "So now I can just opt out of paying taxes for anything I don't want to pay for?" They thought they were making a devastating point against conservatives by reductio ad absurdum. I don't know or really care how conservatives answer that question, but libertarians say, "Of course you should!" as Sheldon Richman does above. It is incoherent and barbaric to suggest that any person should be forced to pay for or otherwise support an action he considers immoral.

3. Corporations have more rights than individuals
Many people misunderstood the Supreme Court's ruling as giving corporations more rights than individuals, seein's how a corporation's objection to supposed abortifacients now trumps a woman's need to buy them. Well, that's simply not true. First of all, corporations in the U.S. had this right until 2012, when the mandate went into effect and religious employers started objecting to it. Progressives might respond, "Ah, see, that's another of the myriad patriarchal, misogynist insults that women had to endure for centuries, and we didn't even know about it until an enlightened law was passed that these religious troglodytes had to formally respond to." Either way, the Supreme Court doesn't give corporations any new power or right, unless your sense of history only goes back two years.

Second, people have the right to refuse to pay for anything, for any reason or no reason. And corporations are groups of people, who can decide on their policies and actions in whatever way they want (simple majority, plurality, two-thirds majority, etc.). I am not well versed in all the problems that corporate personhood has cause in practice or could cause in theory, but the right of a group to refuse to do something that each individual also refuses is pretty basic, whatever the group is called and whatever its status in other matters of law and business. (I do appreciate the points Jacob Levy makes here, and I wish I had the time and expertise to respond to them. My response would probably boil down to "It's not right to force any group to pay for something it objects to" anyway, regardless of the intricacies of the law and the implications the Hobby Lobby decision has.)

Third, observe what "right" the progressives are claiming by supporting the Obamacare mandates and lamenting the Hobby Lobby decision: the right to force others to pay for something they abhor. It is hard to imagine a more illiberal, thuggish, childish, primitive response to an ethical disagreement than, "Well, we passed a law, so you should be forced to pay for what I want!"

4. Make all birth control available over the counter
As usual, libertarians have been on the right side of this one forever. Birth control, like all medications, should be available over the counter at any store that wants to sell it, at whatever price it wants to ask. The reason it isn't is because politicians and lobbyists have kept its access limited for a century. As usual, a free market would have solved this problem—would have prevented this problem from even existing in the first place. Don't expect many politicians to jump at the opportunity to pass such a thoroughly sensible law. Oh, look, three of them have already proposed exactly that, and they're all male Republicans.

Then the problem for the left-feminists becomes this: Once contraceptives are available over the counter, they won't be covered by insurance plans, so then they'll have to pay for all of them out of pocket. Insurance almost certainly won't cover OTC contraceptives. They won't be able to use the law to force other people to subsidze their costs. Will they still support OTC contraceptives, then?

5. Christian conservatives got the law AND the science wrong!
Some people understandably object that Ella and Plan B and other supposed abortifacients aren't really abortifacients at all. They even provided helpful links to articles explaining for the layman how those contraceptives work, assuring us that they cannot cause abortions, so the entire pretense of Hobby Lobby's objection crumbles.

The science is irrelevant. It is irrelevant whether the contraceptives cause abortions. It might not be irrelevant to you, it might not be irrelevant even to Hobby Lobby's owners (who have no problem subsidizing 16 of 20 legal contraceptives), but it is irrelevant to the rightness of a coverage mandate. It is wrong to force anyone to pay for anything they don't want to pay for, regardless of whether the cited reason holds water. Some lawyers and judges might think the science is relevant, since if it isn't, then any old religious employer can conjure up any old religious belief against paying for any old thing, and as long as he convinces the judges he's sincere, he doesn't have to pay for X, Y, or Z. That could be a relevant legal question, but luckily I am not interested in the law. I am interested in what is right and wrong. It is wrong to force anyone to pay for anything they don't want to pay for. They can refuse for any reason or no reason. This is a simple matter or justice, of fairness.

6. White Catholic men ruled against women
The job of those white Catholic men is to interpret the law, and they did so. They ruled against the Department of Health and Human Services. I think rightly, by my understanding of the Religious Freedom Resoration Act and the excerpts I read of Justice Alito's opinion. True, my interpretation of the law and Alito's opinion (and the brief snippets of Ruth Bader Ginsburg's dissent that I read) might be colored by my notion of right and wrong, which again is not based in any laws, but the parts about sincere religious beliefs and "least restrictive means" seem to leave no room for any other decision.

What does it say about the American left that so many of its members have no qualms about bashing the scholarly judgment and intellectual honesty of certain people based mainly on their class identity? The justices have had privileged lives, so the threshold for attributing their judgment to their class identity is lower than it is for other classes? They are part of a privileged group, so you don't have to be as rigorous or thorough in refuting their opinions as you do for others? Just say, "White? Check. Christian? Check. Male? Check. They're biased woman-haters, then." Why weren't the women who ruled against Hobby Lobby biased because they perceived their class as being threatened? Someone's class identity only invalidates their judgment when they side against left-feminists? How convenient: praise their wisdom and objectivity when they side with you, and bash their white, Catholic maleness when they side against you. The same people who object to the Hobby Lobby decision on the basis of the majority's white, Catholic maleness don't object to the decision in Roe v. Wade on the basis of the Protestant and Catholic maleness of the justices who were on the majority opinion.

The function of the Supreme Court is not to decide what is best for certain disadvantaged groups, or even to decide what is right or fair, but rather to interpret the law. If you don't like that fact, then maybe you're on your way to becoming an anarchist. Or maybe you just want the Supreme Court to be another legislature, making law to promote social justice. Whichever it is, it is invalid to use their class identity to question their judgment, just as it would be invalid to use the dissenting justices' class identity to question theirs.

7. Birth control is a public health issue
No, it isn't. Jonathan Cohn claims it is in this piece for The New Republic. Unsurprisingly, he uses that claim as a justification for national government-provided health insurance. But you could make the same claim for myriad private goods to justify nationalizing them, and they would all be as terrible an idea as nationalizing health insurance (or healthcare...shudder).

If people are starving, then they'll become desperate and resort to violence to get food. Therefore, the State should provide food to everyone! If people can't get to work, then the entire economy collapses. Therefore, the State should nationalize all modes of transportation! In this internet age, everyone is made better off the more people there are to trade and communicate with. Therefore, the State should provide everyone a computer and a free internet connection! It is in the public's interest for everyone to be sheltered and protected from the elements, lest hypothermia, heat stroke, and disease kill off half the population. Therefore, the State should provide everyone with housing! Everyone is made better off by a more educated populace. Therefore, the State should educate children for free ("free")! Oh wait, it does, and it's terrible at it.

8. Progressives have strengthened my commitment to grammatical prescriptivism
I am far from a pure grammatical (or usage, style, whatever) prescriptivist, and much less so than I used to be. The way in which I remain a pretty strong prescriptivist most of the time is in word meanings. I want for people separated by time and space to be able to understand each other clearly and precisely, and to mean the same thing when they use the same words. When words such as "literally" lose their meaning and even come to mean their exact opposite, the expressivity of the English language is reduced, and nothing is gained in exchange for that lost expressivity.

Socialist and socially progressive though he was, George Orwell would have many things to say about modern progressives' contortions of the English language, none of them good. When progressives say that women's "access" to birth control is now lessened, we should not let them get away with it. When progressives say Hobby Lobby and/or the Supreme Court has "banned" certain contraceptives for some women, we should not let them get away with it. When progressives say that their reproductive healthcare is not their bosses' business and then clamor for the power to force their bosses to pay for it, we should not let them get away with it. When progressive pass (and cheer for) a law that ropes their employers further and deeper into their reproductive healthcare than they already were, causing some employers to object, and the progressive say, "Stay out of our reproductive systems," we should not let them get away with it.

9. When they misuse words, they know exactly what they are doing
Sure, some of the more childish members of the American left refuse to listen to any logic or facts, and they genuinely don't understand the difference between banning something and not mandating it. But I think a high percentage of well-known commentators, writers, politicians, and the like, who were all over their blags and social media sites blasting Christian conservatives for "banning" "access" to contraceptives and other such nonsense, knew exactly what they were doing. They knew exactly what the Religious Freedom Restoration Act said (more or less) and exactly what the conflict was with HHS's contraceptive mandate, and they were well aware that they were misusing the English language for their partisan political ends. They just didn't care. Their goal is not truth or justice; their goal is partisan political victories, and they will do anything to stir up fervor and indignation at powerful people who aren't on their side.

10. Those semi-informed writers and commentators genuinely think their followers are stupid
And they're right. I'm not going to pretend to take the high road by not offending the modern leftist hoi polloi and saying, "Those progressive writers whom you follow and adore are insulting you, but I give you more credit than that." No I don't. They're morons.

But the leftist TV personalities and writers and politicians who misuse the words mentioned above, who know they are misusing them but don't care, also think the average left-feminist is a moron. Their progressive readers and Twitter followers eat up the garbage about "banning" "access" to contraceptives, and how conservative Christians want to control their sex lives, and how the Supreme Court just imposed its morals on half the population, and how it's not their bosses' business even though they just made it their bosses' business. They eat it up because they are unintelligent, incurious, uninformed, highly emotional, biased, government-educated idiots. And the prominent progressive feminists take advantage of that fact by stirring up outrage with scare tactics and buzzwords and emotionally charged polemics, leaving out all the facts of the case and avoiding any mention of the issue of forcing someone to pay for something they object to.

11. "Fascism cloaked in the flag and carrying a cross"
The progressives loved quoting this Sinclair Lewis line to criticize the right's victory in the Hobby Lobby case. "Fascism" has a basic, more literal meaning and a commonly used, more expansive and emotional meaning. The word comes from the Latin fascis, "bundle", referring to the concentration of power in a centralized state, as opposed to being spread among and originating from the people. Its basic, more restrictive meaning is nominally private ownership of businesses but State control and direction of their activities. The latter meaning includes extreme nationalism, militarism, and social oppression (especially of those who aren't patriotic enough). Let's review the relevant facts and see what we can make of this "fascism" claim.

From the country's founding until 2012, no individual, group, or business was required to subsidize or in any other way provide contraceptives for any other individual or group, though many chose to do so, especially from the 1940s on.
A law was passed in 2010, becoming effective in 2012, under which the Department of Health and Human Services (not Congress and not the text of the Affordable Care Act itself) required most businesses to subsidize all legal contraceptives under its mandated health insurance benefits.
Some religious employers want to continue not paying for a small subset of these newly mandated contraceptives.
Progressives demand that the employers pay for them against their objections.

A literate and honest reading of history and of the relevant facts exposes the progressive left as the fascists in this case. (It also shows that whatever "fascism" Hobby Lobby and the Supreme Court are supposedly inflicting has been going on since at least the 1700s, so it's certainly not being brought to America just now.) Fascism means concentration of power, suppression of dissent, enforcement of conformity, and central direction of business activity. The nature of Obamacare and the reaction of the left to the Hobby Lobby case (and, indeed, to all objections to Obamacare) fit the mold of fascism perfectly, minus the nationalist, militant, racist aspect of it. (Some people consider the latter the defining characteristics of fascism. I don't. It might explain why they think anything that doesn't actively advance their version of feminism is fascist, but as I've tried to explain here and elsewhere, this isn't a matter of feminism or women's rights but rather freedom of choice and of association.)

12. A new age of Christianity-flavored Sharia law
The law that Hobby Lobby challenged became effective in 2012. For the entire history of the United States, companies were not required by law (federal law, at least) to cover any health benefits, contraceptive or otherwise. There was no stoning in the streets or executions for being raped. All that is needed to refute this incredibly ignorant claim is not to make reasonable predictions, not to invoke well-supported theories, but to cite actual history.

13. Kevin Carson is torn because a large, hypocritical corporation won the case
In his column Hobby Lobby - A Question of Agency, Kevin Carson writes,

In libertarian Internet communities, the decision was met for the most part with unalloyed joy that the good guys had won this time. It’s not at all that clear cut for me. I have at least as many online friends in social justice circles as I do among libertarians, and I don’t blame them at all for their outrage.

There he seems to suggest that libertarianism conlficts with social justice. I doubt he really thinks that. Maybe he means some people's definition of social justice conflicts with some people's definition of libertarianism. Either way, it's not a ringing endorsement of the wider social justice movement as is.

All the contending narratives about the Hobby Lobby case seem to involve personal agency. That’s definitely true on the mainstream libertarian side, which presents this as a straightforward question of whether Hobby Lobby’s owners (the Green family, which hold it as a close corporation) can be forced by the state to provide employee benefits that conflict with their personal religious beliefs. But there are a lot more people’s agency at stake here than the Green family’s. And frankly, the Green family billionaires are pretty low on my list of “underdogs” whose moral agency my heart bleeds for (especially considering they invest in contraceptive manufacturers, and most of the “Christian” knick-knacks they sell are produced by near-slave labor in Chinese sweatshops).
To repeat, there were a lot of people whose agency was at stake here besides the Green family’s — in particular, the 70% majority of Hobby Lobby’s workers who are women. who may have been having a hard time finding work and accepted employment at Hobby Lobby because they really needed a job, who were glad to get health coverage — and who may someday desperately need “morning after” contraception. I felt sick about these people in a way after Monday’s ruling that I never would have about the Green family.

And questions of free association aside, an economic system in which a small wealthy family can wind up in the one-sided position of exercising their own agency at the expense of 13,000 others is a system that’s broken, sick and rotten.

Even though I, like Carson, don't base my sense of justice on what is legal, and even though I was happy about the Hobby Lobby decision for reasons other than that it upheld the letter of the law faithfully, I feel like Carson goes too far in wanting the Supreme Court to make decisions whose wide-ranging implications are the most agreeable to him and that redress power imbalances between various subsets of the population, rather than wanting the Supreme Court to make the most just decision in this case.

His heart doesn't bleed for billionaires, especially supposedly hypocritical ones. But our sense of justice should not depend on who has more. And especially, our judiciary should not make decisions based on who has more or who has been hypocritical in the past, nor should we want it to. I liken his reaction to the public's reaction after an acquittal in a sensationalized murder trial. After George Zimmerman was acquited of murdering Trayvon Martin, I echoed those who asked, "If every criminal trial followed the same standards that you wanted for the George Zimmerman trial, how would that affect the number of incarcerated Americans?" If the function of the judiciary were to weigh each party's relative power and privilege in the world, taking their likely future prospects and their past crimes and hypocrisies into account, and endeavor to rule in the way that would mitigate those imbalances, then we wouldn't have a judiciary at all, and very rarely would any actual justice come from it. If a past criminal is tried for new crimes and is judged not only on the available evidence and the merits of the defense and prosecution but also on his criminal (or merely shady) history, then we would have a sorry criminal justice system indeed. (Well, sorrier.)

Carson says Hobby Lobby's owners are hypocritical because they have invested in contraceptive manufacturers and engage in the very uncharitable, un-Christian practice of selling knick-knacks that are produced in slave-like Chinese sweatshops. First, Hobby Lobby has covered and still covers 16 of 20 mandated contraceptives in its insurance plans, so I don't see any hypocrisy there unless those contraceptive manufacturers it invests in actually make the supposedly objectionable abortifacients. Second, I'm sure Carson is aware of the work of Ben Powell on sweatshops and either disagrees with or doesn't care about Powell's conclusions. I'm not going to make any new points about sweatshops or be the one to change his mind about them, but I will point out that they're irrelevant to the Hobby Lobby Supreme Court case. And they're irrelevant to our non-lawyerly assessment of whether it's right or wrong for employees (or their agent, the State) to force Hobby Lobby to subsidize their birth control.

Another reason we shouldn't base our sense of justice on who is and isn't an "underdog" is because the next time, the underdog might be the one who is in the same position that the powerful billionaires were in this time. Such as the Little Sisters of the Poor. Hobby Lobby's sort of co-challenger, Conestoga Wood Specialties, is far from an international corporate behemoth, at 1200 employees spread over three states. How would Carson have reacted to a ruling in favor of a 50-person corporation owned by a religious family who considers abortifacients immoral? Even though a foolish adherence to precedent can cause previous bad decisions to become entrenched, precedent can also protect future complainants who would otherwise be at the mercy of the State. The Hobby Lobby decision establishes precedent that could protect many "underdogs" without the resources or wherewithal to challenge the federal government. In fact, it will almost certainly protect more such underdogs than corporate behemoths in the long run.

If he objected that the next underdog is actually more likely to be a minimum-wage employee who now has even less power against his employer, then I would say that I simply think he has his priorities mixed up. The State is far more powerful and dangerous than a huge corporation, and the State is the source of most of the power that these corporations have. Since we share the goal of reducing the State's expansiveness and intrusiveness into such areas as healthcare, we should both recognize that any new encroachment of the State into private affairs will further perturb the free interactions of peaceable parties, will further entrench this corporatist-Statist system in our lives, and will only invite more powers and more intrusions in the future. As Carson well knows, increased State power tends to increase the power of all the elite classes. It is a defining feature of the pathological system that he has written so much about. Why should we expect this increase in State power (and, importantly, future ones like it) to turn back that tide?

As Carson and all libertarian-leaning people recognize, this entire conflict over contraceptive (and other) mandates was caused by the federal government's overreach, by its expansion of power and intrusion into previously private matters. He and I both know that the optimal solution would be to repeal the ACA and, indeed, every single law that has ever been written about healthcare and health insurance. So why does he allow that a further expansion of State power—an additional way in which the State can be used as a weapon against conscientious objectors—could serve justice in this matter?

He also writes,

And questions of free association aside, an economic system in which a small wealthy family can wind up in the one-sided position of exercising their own agency at the expense of 13,000 others is a system that’s broken, sick and rotten.
In the case of healthcare, the underlying legal regime that made the Hobby Lobby case possible was a vast, interlocking constellation of power that included the regulatory state, insurance corporations, the professional licensing cartels (including the requirement that some medications be prescribed only by licensed physicians), the patent-based pharmaceutical cartel, and utterly corrupt bureaucratic corporate hospital chains.

Obamacare itself merely touches the finance side of healthcare — basically guaranteeing revenues and profits to the existing institutional healthcare delivery monopolies through a combination of mandates and subsidies — while leaving the institutional economic power and price markups on the delivery side untouched. It cements the control of these interlocking, bureaucratic, authoritarian — and in many cases evil — institutions over our lives, and legally compels us to consume their services on whatever terms they see fit to offer. But it uses tax money to help us feed the corporate coffers if we can’t afford to pay for the monopoly services on our own.
If all these forms of monopoly and privilege were abolished, no one would be dependent on corporate employers for opportunities to engage in productive labor and transform their skills and effort into access to the necessities of life. And no one would depend on an unholy alliance of the state, insurance corporations, drug companies and professional licensing cartels for contraception or any other form of healthcare.

I get his point here: If we're debating whether it's right for one group (for the sake of argument, simplify it to Hobby Lobby's female employees) to force another group (the Hobby Lobby corporation) to pay for the former's emergency contraceptions (or whatever), then it matters what wrongs have been committed by the latter against the former, and what burdens have been placed by the latter on the former, and how the system is rigged in favor of the latter. Those things matter not because the relatively powerful should be forced to give money or things to the relatively powerless as a matter of principle, but because the relatively powerless are in that position and must rely on the powerful for those things precisely because of the perverseness of the system that created this power imbalance.

But the justice of the entire system wasn't at issue in this case. Well, what was really at issue was a conflict between two laws, the ACA and Religious Freedom Restoration Act, and not morality or justice. But Kevin Carson and I can look at this individual case as an issue of morality or justice and ignore the details of the laws. Two considerations make me think that a ruling in favor of Hobby Lobby was better for both my and Carson's senses of justice. First, what I mentioned above: a person or group's past actions, their supposed inconsistencies or hypocrisies, and their position of power and privilege should not carry any weight in the present case, unless they clearly and directly affect the specific details of the present case. I don't think they did, because for all that Hobby Lobby benefits from corporate-state socialism, its owners are decidedly opposed to the contraception mandate. (Hell, probably all of Obamacare, given the politics of your average rich American Christian.) Second, each dent we make in the State's edifice, even when it is nominally on behalf of a powerful, wealthy corporation, advances the cause of freedom just a little. Each invalidation of its decrees, each rejection of its overreach, each embarrassment we deal it, each time civil society maintains a foothold where government tried to supplant it, is a victory for freedom and should be celebrated as such. A billion-dollar international corporation was the direct beneficiary this time, but when a basic freedom is protected against the State, we all win, because next time an "underdog" might need the freedom that was established by that struggle.

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  1. 2 Responses to “Thirteen miscellaneous thoughts on the Hobby Lobby case and the reactions to it”

  2. Let's discuss your point 5 in which you claim that the conservatives got the law and the science wrong.

    Well the fact is that ALL nine justices concluded that, based on the Religious Freedom Restoration Act (RFRA) you CAN have a strongly held religious belief that may be scientifically "wrong". I will quote directly from Justice Ginsburg's dissent:

    "In no way does the dissent “tell the plaintiffs that their beliefs are flawed.” at 37. Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must decide is not “the plausibility of a religious claim,” at 37 (internal quotation marks omitted), but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States. See at 7–8; , at 27."

    To put it another way, the RFRA required courts to consider whether the plaintiff's religious beliefs were "sincerely" held ... not whether they were "reasonably" held. If the Democrats who sponsored and passed the RFRA wanted a reasonableness test, they should have written than into the law. But they didn't, and so all nine Justices rightly (in my opinion) concluded that they were sincerely held, and then moved on to disagree, and make different rulings, based on other factors.

    Now, back to the science, which you cite, I think the debate over this is largely a semantic one, based on how the medical community defines an abortion, as medical science does not define any interference with the implantation of a fertilized egg as "abortion".

    However, whether you call it an "abortion", or whether you call it just "possibly interfering with the implantation (and therefore viability), of a fertilized egg", if someone deems a fertilized egg - implanted or not - to be a human life, then I could certainly understand why even Justice Ginsburg, to her credit, did not dissent based on any doubts over whether the plaintiff had a "sincerely held religious belief", since such beliefs about the beginning of life would naturally lead to objections to the funding of devices that MAY result in that "life" not being able to continue.

    As I side note - I do not agree with that view of when life begins. I personally don't know at what point a embryo becomes "life", but I would place myself in what I think is the mainstream view - that abortion should be legal in the early months, available subject to reasonable limitations in the middle months, and only available for emergencies in latter months. So if this were my family-owned firm, I would pay for all contraception, including the "Plan B" types.

    But it is not my firm, and I think in this case the court reached the right decision - balancing both the religious rights of the employer, the "compelling interests of the employees (something else with which most Justices agreed), AND, most importantly, the availability of alternative methods by which the employees could obtain the omitted devices at no cost.

    By Michael on Jul 14, 2014

  3. "Let's discuss your point 5 in which you claim that the conservatives got the law and the science wrong."

    I'm afraid I have created a misunderstanding with my poor or inconsistent wording of those bold, numbered section titles. In some of them, I was expressing my own opinion, such as "2. The Hobby Lobby decision doesn't go far enough" and "9. When they misuse words, they know exactly what they are doing". But in others, I was quoting the hysterical objections of others that I read around the interwebs, such as "12. A new age of Christianity-flavored Sharia law" and "5. Christian conservatives got the law AND the science wrong!" I realized this was inconsistent before I posted it, and I realized I only used quotation marks around some of them, but I didn't think it'd cause any confusion. I just went with the wording and punctuation that felt best for each individual section title and didn't worry about whether it was consistent with the others.

    I, too, don't really know for sure when life begins, nor does anyone else, and I also don't know if those four supposed abortifacients really are abortifacients according to this or that person's view of when life begins. You make a good point about this being largely a semantic issue. And I thank you for your contributions about the RFRA and the quotation from Ruth Bader Ginsburg's dissent, because obviously I didn't talk about the law very much in my post.

    By John on Jul 14, 2014

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