The Supreme Court Should Have Ruled Against Hobby Lobby

by Benjamin Studebaker

I’ve briefly touched on the Hobby Lobby case before, but given its recent prominence, I’d like to devote a full piece to it. The case is fairly straightforward–under Obamacare, large corporations are required either to provide health insurance or pay a fine. Obamacare mandates that health insurance packages include coverage of some minimal set of treatments and services, including access to many kinds of birth control. Hobby Lobby objects to a couple of these kinds of birth control–its owners believe that they amount to abortion, and they morally object to abortion on religious grounds. However, Hobby Lobby does not want to pay the fine. It wants to provide health insurance to its employees but receive a religious exemption from the requirement that it cover these specific kinds of birth control. The court should have ruled against Hobby Lobby–here’s why.

There’s a premise underlying all of Obamacare–we ought to positively entitle citizens to certain kinds of healthcare. There are some people who disagree with that premise, who believe that citizens are not positively entitled to anything and that correspondingly Hobby Lobby shouldn’t have to cover birth control. If the court were to embrace this view, all of Obamacare would be unconstitutional. Not only that, but the state would have to stop entitling children to education, old people to Social Security, poor people to food stamps, and so on, because all of these programs exist to promote positive liberties. The view that citizens ought not to have positive liberties of any kind is unreasonable and repugnant. It would result in grave harm to vast portions of the population and for that reason I dismiss it.

What’s a more nuanced view? Supporters of Hobby Lobby might contend that while citizens should have positive liberties to many kinds of healthcare, there is something specific about birth control that makes it different. The state seems to have conceded this on some level–it has allowed churches to be exempt from this provision. This implies that the state believes birth control to be a legitimately religious issue. But on what basis does the state recognize this?

There happen to be many religious people who presently  believe that birth control is immoral, but this is just that–pure happenstance. Suppose instead that these religious people held the view that vaccines, antibiotics, organ transplants were immoral, and Hobby Lobby wished to be exempt from having to cover them. The state does not believe that it is morally permissible for Hobby Lobby to refuse to provide coverage for these other things on purely religious grounds, so on what basis could it allow Hobby Lobby to do so in the birth control case?

This more nuanced argument must ultimately rest on the assumption that the benefit of having access to birth control via health insurance is much smaller than the benefit of having access to cancer treatments or vaccines or other such things. If the state believed that, why did it require that health insurance packages cover birth control in the first place? Indeed, it is not very difficult to see the advantage women derive from birth control–it reduces the chance that they will be saddled with unwanted children. Parents are unlikely to do a very good job raising children they did not want or plan for, and those children are consequently likely to have problems as adults and be unable to contribute to society in the usual way or to the same extent. In this way, birth control not only advantages the women who use it, but the wider social system that is plagued with fewer unwanted, poorly parented citizens.

The state could employ the solution it used in the case of the churches–it could permit the churches not to pay for birth control while taking on that cost itself. In this way, the state would both allow Hobby Lobby the exemption while simultaneously upholding the positive liberty. But this has the same problem as ruling in favor of Hobby Lobby writ large–what is to stop other companies from raising religious objections to cancer treatments, vaccinations, and other such things? Scientologists object to all medical treatment for conditions they consider “psychosomatic”. Suppose Scientology became vastly more popular and many companies began to use it as a pretext for denying many kinds of coverage so as to push that obligation onto the state. This would vastly drive up the state’s financial obligations, forcing it to levy taxes to pay for this additional coverage. Given a large enough number of Scientologists, the state would be pushed into extra-legally funding what would essentially be a state-funded national health system. While I might like to see such a system implemented, it would clearly pervert existing law, which is intended to make employers shoulder the burden of healthcare costs. If employers can shirk that burden by claiming religious freedom, we must acknowledge that this could, in theory, be done quite widely at substantial social cost.

Birth control benefits women and it benefits a society that desires its babies to be planned for and wanted. For these reasons, it was included as part of the requirements for health insurance under Obamacare. If Hobby Lobby’s claim is that birth control is not beneficial, that it is in fact harmful, the time for Hobby Lobby to have made that argument was during the legislative deliberation. There are many things that the government mandates we do or do not do that some portion of the population believes to be immoral. Many libertarians believe for philosophical reasons that taxation is theft as surely as the owners of Hobby Lobby believe that birth control is abortion and abortion is murder, but this does not entitle them to be exempt from paying taxes (and if it did, who wouldn’t claim to be a libertarian to join in the exemption?).

When the government makes any law of any kind, it is mandating or prohibiting or encouraging or discouraging some behavior that, before that law was passed, was controversial. In so doing, it inevitably takes moral and religious positions that some portion of the citizenry will not agree with. If the state wants to allow people to make different decisions based on their philosophical and religious views, it should not make laws on those issues in the first place. The mere act of having made a law requiring that birth control be covered indicates that the state believes birth control is too important to be left to individual or corporate moral and religious decision-making.

The only cases in which the court should strike down laws for philosophical or religious reasons is when the law unfairly targets a specific group in an effort to drive that group out of existence. Freedom of religion ought to entail freedom of conscious, a freedom to state and express beliefs that existing laws are wrong or should be amended. It ought not however to entail freedom to break the law, or freedom to be exempt from the law just because one thinks one ought to be. A society governed in this way would need as many legal systems as it had philosophies and religions, and with the independent “spiritual” direction many people are going in nowadays, that’s soon to mean as many legal systems as we have people.

At its core, the state is a coercive apparatus. Sometimes that coercion is a good thing, and sometimes it’s a bad thing. Often times, your view is going to vary depending on the philosophical and religious beliefs you hold. But the state cannot satisfy all beliefs at the same time, because many beliefs contradict one another. In those cases, the state has to make hard choices. If it had chosen not to mandate birth control, it would have offended the philosophical and religious sensibilities of an entirely different group of people just as much as it presently offends the owners of Hobby Lobby. No matter what choice it makes, by the sheer act of making a choice, the states coerces. It cannot be wholly neutral or impartial, and those demanding that it somehow find a way to enforce the law without coercing Hobby Lobby are demanding the state embrace a contradiction in terms.

Update:

On June 30, 2014, the court ruled in favor Hobby Lobby, disregarding my very sensible moral argument. Blockheads.