For those on the left side of the political spectrum, single-payer health care — a system in which the government, rather than private insurers, pays for all health care costs — is one of the most popular policy proposals in America. But the recent Hobby Lobby decision is reminding some liberal technocrats that giving the government full control over health care funding also gives the government control over what medical services will be funded.
Regarding the Hobby Lobby decision and the Supreme Court, I believe the National Review editors summed it up best: “That this increase in freedom makes some people so very upset tells us more about them than about the Court’s ruling.”
I address this rapid politicization and misunderstanding of religious liberty and natural rights in today’s Acton commentary. The vitriolic reaction to the ruling is obviously not a good sign for religious liberty and we’re almost certainly going to continue down the path of losing rights of conscience and free expression. Obviously, I hope I’m wrong. But I wanted to step back and take a more comprehensive look at where we are now.
One point I make in the piece is that our federal lawmakers no longer hold a consensus to protect religious liberty, as they did with the Religious Freedom Restoration Act of 1993. Back then, there was overwhelming unification and bipartisanship to protect and strengthen religious liberty, that is a thing of the past and it has been swallowed up by partisan politics. Our collective partisan politics is becoming bigger than our once common understanding of natural rights.
Another point I stress is that there is an obvious difference on the very meaning of religious liberty that cuts through our country. This is well known to those who pay attention to these issues. Many saw the Hobby Lobby ruling not as a ruling in favor of the rights of conscience and liberty, but only a temporary setback in divorcing religion from public human affairs.
The Supreme Court ruling is being politicized in a myriad of vicious ways and that by itself is a bad sign for religious liberty. It will be a tough task going forward to educate people on the necessity of a vibrant understanding of religious liberty and natural rights that promotes the common good.
Acton Institute President and Co-Founder Rev. Robert A. Sirico had a busy media day yesterday in the wake of the release of the Supreme Court’s decision in the Hobby Lobby vs. Sebelius case. using the audio player below, you can listen to an interview with Rev. Sirico on The Michael Berry Show on Houston’s 740 AM KTRH radio where the impact of the decision is examined. Additionally, beyond the jump I’ve embedded Rev. Sirico’s appearance on Bloomberg TV’s Street Smart with Trish Regan, where he participated on a panel discussing the decision.
Earlier today, Rev. Sirico spoke with WSJ Live’s Mary Kissel about the contraceptive mandate ruling, religion’s place in the public square, and the historical context of the Supreme Court’s decision. Watch below:
In a 5-4 decision, the Supreme Court just announced its ruling in favor of Hobby Lobby, holding that, “as applied to closely held corporations, the government’s HHS regulations imposing the contraceptive mandate violate the Religious Freedom Restoration Act of 1993 (RFRA).” The full opinion, written by Justice Samuel Alito, can be read here.
Although there is still much to digest, and although the majority opinion still leaves quite a bit of room for related battles to continue, it’s worth noting that that whatever perceived “narrowness” we see in the decision — confining things specifically to closely held corporations — remains a significant victory, particularly given our culture’s prevailing attitudes about business.
According to HHS, by simply incorporating one’s business in the pursuit of profit — “without in any way changing the size or nature of their businesses” — a company “would forfeit all RFRA (and free-exercise) rights” (quotes from Alito’s paraphrase). The arguments supporting such a view vary, including the principal argument advanced by HHS that corporations cannot “exercise religion.”
Alito dissects this from a variety of angles, and does so rather compellingly. But one of the more noteworthy sections is his refutation of the notion that for-profit corporations aren’t protected by RFRA because they “simply seek to make a profit.” (more…)
Supreme Court Justice Samuel Alito wrote the majority (5-4) opinion in Burwell v. Hobby Lobby. The decision was decided in large part because it aligns with the Religious Freedom Restoration Act, a law that passed the U.S. Senate 97-3 and was signed by President Bill Clinton in 1993. The law is intended to prevent burdens to a person’s free exercise of religion. At the time, it had wide ranging bipartisan support and was introduced in the House by current U.S. Senator Chuck Schumer (D-NY).
That four justices voted against the decision speaks to the current ideological divide at the court and in the nation of a once non-controversial understanding of religious liberty.
Some significant lines from Alito’s majority decision are below:
As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA.
Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any cost sharing requirements on the employer, its insurance plan, or its employee beneficiaries.
…the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest.
RFRA’s text shows that Congress designed the statute to provide very broad protection for religious liberty…
Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.
HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection.
Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate.
What is the end – the goal – of business anyway? Is it to merely maximize a profit or to do good, or some balance between the two? And what exactly does it mean for a business to “do good”? And if I happen to be a person of deep religious faith, do I have to check my faith at the boardroom door? What influence should my faith have on the exchanges I engage in day to day, and what are the practical implications of ethics on how I conduct myself in business relationships? Andrew Abela is the 2009 recipient of Acton’s Novak Award. He has just co-authored a very important book on the subject of the intersection of ethics and morality with business: A Catechism for Business: Tough Ethical Questions & Insights From Catholic Teaching (The Catholic University of America Press). He speaks with Acton’s Paul Edwards on this edition of Radio Free Acton.
The Supreme Court recently heard oral arguments in the Hobby Lobby contraception case. But which arguments will have the most influence on the justices? Michael McConnel, a respected Religion Clauses scholar from Standford, explains which four arguments are most likely to be important:
Cutting through the politicized hype about the Hobby Lobby and Conestoga case (“Corporations have no rights!” “War on Women!”) the Justices during oral argument focused on four serious legal questions, which deserve a serious answer:
(1) Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?
(2) Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?
(3) Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?
(4) Has the government satisfied the least restrictive means test?
I think the answer to all four questions is “no.” I offer brief thoughts on each below.
The CVS chain made an announcement a few weeks ago: they would no longer sell tobacco products at their stores. CVS President and CEO Larry Merlo said:
As the delivery of health care evolves with an emphasis on better health outcomes, reducing chronic disease and controlling costs, CVS Caremark is playing an expanded role through our 26,000 pharmacists and nurse practitioners. By removing tobacco products from our retail shelves, we will better serve our patients, clients and health care providers while positioning CVS Caremark for future growth as a health care company. Cigarettes and tobacco products have no place in a setting where health care is delivered. This is the right thing to do.
Merlo’s own father died of lung cancer, and Merlo felt that this was not only a business decision, but an ethical one. (more…)
Over at The Federalist, Gabriel Malor runs down some interesting “illusions” (okay, he calls them lies) regarding the HHS mandate and the Supreme Court. Here’s a quick run-down:
- The HHS mandate is all about women’s rights. Nope: women don’t lose a thing if Hobby Lobby et al. win. What will happen if Hobby Lobby and others like them win their case is that women who do not wish to pay for others’ birth control and/or abortions will not be forced to do so.
- The HHS mandate is about gay rights. Admittedly, this one was new to me. However, there are some who are saying that if business owners don’t have to pay for birth control, they can turn away gay customers as well, or as Malor puts it, if the government loses, it will “unleash an apocalypse of discrimination heretofore avoided.” No; every time there is a possible violation of religious freedom, our court system must weigh each case individually.
- These contraception cases are all about for-profit companies. Big business, bad business, you know. These companies, who are already pocketing millions, are looking for special treatment. However, there is no mention of the corporate form in the First Amendment. It neither includes nor precludes it.
- Corporations cannot exercise freedom of religion. People can (hopefully) but businesses can’t. This would be news to every Catholic diocese in the United States, as they all operate under corporate form.
- We can’t allow dangerous new rights for corporations/businesses. Um, since when has the federal government been allowed to tell business owners what types of insurance they have to provide? Oh, yeah…now.
- Our government has a compelling interest in forcing businesses to provide birth control. Legally, that is what the government has to prove. Of course, this is “bunk,” according to Malor, especially since Kathleen Sebelius has already granted 190 million exemptions. How can the government prove then a compelling interest?