Some Ethics Comments On The SCOTUS Hobby Lobby Decision

Hobby-Lobby1. First, read the decision, here. When you do, you will be disgusted at the blatant exaggerations and outright misrepresentations by various pundits, advocates, activists and reporters. In the case of the latter, this is incompetence and a breach of duty to the public. In the case of the rest, it is either dishonesty and willful deception, or stupidity. For example, as an exercise, count the number of misrepresentations and misstatements inherent in this tweet, from MSNBC ‘s Cenk Uygur:

 “I love that conservatives are now on the record as against contraception. Brilliant move to be against 99% of women!”

I count five, but I could be off by one or two. Is this genuine misunderstanding, or just intentional rabble-rousing? Who can tell, with shameless partisans like Cenk?

2. The opinion did not raise corporations to the status of individuals for religious purposes. The Left refrain ridiculing the legal status of corporations is really and truly pandering to the ignorant, and is a self-indictment of absence of candor and honesty, but in this case, it is just absurd. The kind of corporation that the Hobby Lobby decision refers to is the kind where the corporation is indistinguishable from its owners, and is in fact just a legal mechanism to allow the owners to engage in activities they want to engage in. How do I know? I know because my own company, ProEthics, is such a company. It is owned and run by my wife and I—it is us, and we are it. Its values, aspirations, political opinions and conduct are all ours. This cannot be said of larger companies, which is why the decision doesn’t relate to them at all. I am not agreeing or disagreeing with the opinion itself when I point out that the position of the majority that a family’s values expressed through its closely held company are personal, not corporate values is reasonable and fair. Those who are representing it as extending religious rights to companies generally are lying. Or dim. My guess: when E. J. Dionne wrote this nonsense…

“More than that, the justices continued to press their campaign to create an entirely new legal regime under which corporations enjoy rights never envisioned by our Founders or the generations who followed them.”

…he was intentionally misleading his loyal, addled readers. I might be wrong. He really could be that confused.

3. Sen. Harry Reid, or whoever tweets for him, Washington Post pundit Ruth Marcus and others decided to blame sexism for the decision, which is both slander and ethically incoherent. This is yet another example of people advocating conflicts of interest as preferable to objectivity. Are these critics suggesting that female jurists are incapable of deciding a case without being driven by the bias of their own gender, and “team” loyalty?  And that this is a good thing? We want justices making decisions affecting all citizens based on the groups they personally identify with? Do such people understand anything about ethics? “It’s time that five men on the Supreme Court stop deciding what happens to women,”  tweeted Reid. Well, we know Harry doesn’t know anything about ethics, but is this really how he thinks justice should operate—only whites deciding issues affecting whites, blacks deciding issues affecting blacks, Catholics deciding issues affecting Catholics, and so on?

4. Dionne again, making an invalid point that I have now seen repeated and used to mock the decision: “The decision, written by Justice Samuel A. Alito Jr., is strange…it barely nodded at settling the factual question of whether birth control methods such as an IUD are abortion-inducing.” Yes. E.J., it ignored that issue because it is not the Supreme Court’s job to decide whether religious beliefs are factual or reasonable. They are religious beliefs. In my opinion, none of them are “factual,” and so what? The issue is whether the state and the law have the power to make those who sincerely believe them act contrary to those beliefs as they understand them.

5. The other fake argument—oh, sure, Dionne likes this one too— that only makes sense if you are biased or not thinking clearly: “Hobby Lobby isn’t just the reflection of its owners’ beliefs and desires, because it is a big company, with many millions in sales.” What difference does it make how much business the family does, if only two people are doing it? Again, if my wife and I by some miracle managed to turn our ethics and consulting business into a multi-billion dollar enterprise, how would that change the fact that we were the business in every way, and that it reflected our desires, interests, beliefs and conduct, and ours alone?

To help you recognize the various hysterical over-reactions to and misrepresentations of the opinions—so you can tell your friends who repeat them back to you why they need to start reading more trustworthy and less partisan sources, go here, here, and here.

____________________

Sources: Washington Post 1, 2; WSJ

71 thoughts on “Some Ethics Comments On The SCOTUS Hobby Lobby Decision

  1. I agree with you that it is not the job of SCOTUS to determine if a belief is reasonable. For example. SCOTUS should not take into consideration if the Christian belief that Jesus Christ was the son of God who was sent to Earth to die for the sins of humanity and who rose 3 days later. That is a religious belief based in faith. It should not be questioned legally.

    The Christian belief that “life”, or more philosophically speaking the act of ensoulment, begins at the moment of joining between the sperm and egg is also a matter of faith that should not be questioned. The byproduct of that belief being that any attempt to prevent that embryo from implanting to the wall of the uterus would be an attempt to kill something that Christians belief is a life (that is the moral equivalent of a born person or you and me) is sinful is also a religious belief that should not be questioned.

    However, what the owners of Hobby Lobby have done is they stated that because certain forms of oral contraception prevent implantation that they should not be required to “pay”* for it as part of the health insurance benefits provided in lieu of payment to their employees. This is NOT a matter of faith. This is a matter of science. IF those pills do block implantation then their beliefs would be violated if they are forced to pay for them. However, if those pills do not block implantation then their beliefs would not be violated. They should have been required to provide evidence that these pills prevent implantation in order for their case to make its way through the courts. Not doing so opens the proverbial can of worms. People can now say things that are false and claim them to be “beliefs” and since they are “beliefs” they cannot be questioned? That is ridiculous.

    And these oral contraceptives are not considered abortifacients by the medical community. They not only will not work if the woman is already pregnant, but there is also no evidence to show that implantation rates differ when taking these pills over not taking the pills. So even if you want to use the incorrect definition of abortion that the anti-oral contraception crowd will often use, they are still wrong in suggesting that an embryo at any stage will be destroyed (or will even suffer a higher chance of being destroyed) because a woman takes these medications. So Hobby Lobby would have been unable to prove the harm they claim by the oral contraception mandate.

    * I put pay in quotes because there is no difference between an employee making $50K a year and getting $10K of insurance premiums provided in lieu of pay OR making $60K a year and having to pay those $10K of insurance premiums as a pre-tax deduction on your paycheck. In both instances the net pay is the same (all other things being equal). All employee compensation (be it salary, bonuses, benefits, etc) are paid for by the labor of the employee and it should never be considered that the employer is paying for a single penny of the benefits. (Just like a Jewish employer couldn’t say that they are paying for the bacon that their employees buy). Since the employer does not pay for the benefit, there is again no harm.

    • I’m not sure what the pro-choice bench wants me to believe anymore. I may be pointed to studies and opinions saying certain forms of birth control are or are not abortificients depending on the point they’re making. I have no issue with straight up contraception, so I’ve been told countless times that I should just give up and accept abortion because many contraceptives prevent fertilized eggs from implanting. If I have no issue with preventing implantation, which must be true since I support birth control, then I should have no issue with aborting the same clump of meaningless cells. Now it seems the story has changed, and everyone’s completely rearranged their arguments to support their original opinions.

      • I am not sure where any contradictions are happening Null. Many people who are pro-choice would not call the prevention of an embryo from implanting into the uterus an abortion because before implantation there was no pregnancy and many created embryos are naturally discarded without implantation anyway.

        But even if we accepted the incorrect definition of abortion that includes the prevention of an embryo from implanting to the uterus there is no evidence that oral contraception does this.

    • Good job, Dan, at getting it exactly backwards. Whether or not someone should pay for something is, surprisingly, not a matter of science.

      Where a unique “life” begins, is, in fact, a matter of science, and so far as any reasonable definition of “life” is acquiesed to, it begins at conception, when a unique genetic code exists, that will, if permitted to, develop into a unique person.

      It’s not your business to ignore and reject the consensus of science just because you don’t like where the evidence leads.

      • I beg to differ with the implication that “human” is synonymous with “person.” I think it’s possible for an entity to be genetically human without displaying personhood, and I think that a single cell does not have personhood. Are we saying that there are people less than a gram in mass?

        I am willing to discuss the definition of “person” under the assumption that we both understand the definition of “human.” I read “person” for the word “life” in legal contexts rather than interpreting “life” as “human.”

      • Isaac, you either did not fully read or did not fully understand Dan’s comment. He made it clear that the contraceptives in question DO NOT end a life–they prevent fertilization, not implantation. It is ironic that you are accusing him of ignoring consensus science when you are the one doing that.

    • ” … But there is also no evidence to show that implantation rates differ when taking these pills over not taking the pills.”

      The studies are conflict in this matter; some have found evidence, others have questioned this evidence. The Supreme Court is not the forum to resolve that issue, but is the forum to decide if religious motivated prudence regarding the issue is appropriate.

      ” All employee compensation (be it salary, bonuses, benefits, etc) are paid for by the labor of the employee and it should never be considered that the employer is paying for a single penny of the benefits. ”

      Except the law does not work quite this way, and that is by design. The law places the burden of payment on the employer, because it wants the employer to negotiate the best possible rates for coverage, contributing the “Affordable” to the “Affordable Care Act”. The employer is simply not a passive agent in this matter.

      • Tax law works exactly that way. If I make $50K in salary and my employer provides $10K in premium payments in lieu of salary OR I make $60K and provide $10K of premium payments as a pre-tax deduction I am netting the same amount of money (all other things being equal).;

        The employer can still negotiate for the best rates under either scenario. I am just saying that employee labor pays for the premiums paid, regardless of how it looks on your pay stub.

        And if Hobby Lobby could not prove that those pills block implantation, and as such create an issue with their religious beliefs, then they should not have received a ruling in their favor. They are saying “If X is true, then my religious beliefs are violated” but are never asked to prove X.

        • I do not dispute the tax law, which treats health insurance premiums as untaxed income. I dispute the notion that companies and owners have no morally significant role in how this “income” is used, and are thus not impacted by the requirement to facilitate contraceptive coverage. I also dispute as grossly inappropriate the need to scientifically validate religious beliefs before they receive due protection under the law. How beliefs impact actions is deeply personal, and any burden should be based solely on an openly discussed overriding objective.

          The Affordable Care Act requires an the active role by the owners in providing coverage for “preventative services”, which contraceptives and related services were classified as only after the law was passed. Many owners who supported Hobby Lobby’s case were never willing to negotiate coverage for or aid in the distribution of contraceptives in any way. The Obama administration even promised that no one’s religious beliefs would be trampled by the ACA, yet placed this mandate on business owners for political expediency.

          Let us now admit as a basic assumption that the purpose of employment is first and foremost to serve the owner’s interests. It is an absurd concept then to force owners to act outside their interests without grave cause. The link between employer and duty to provide access to contraception is simply too weak to burden owners who object on religious grounds. The ruling is based on a law that requires any burden placed on religious beliefs to be the least impactful, which is an intuitively fair ideal. There are other, albeit more politically difficult options that do not necessarily burden owners who object to facilitating complete contraceptive or even partial coverage.

          As for proving a scientific point in court, which is not needed in such a case, no body seems willing to admit or entertain the notion there is conflicting scientific evidence regarding contraception as a potential abortifacient. Even if court were an appropriate venue for this discussion, neither side would have definitive “proof” that the medicine could or could not harm a fertilized egg. It is a wash, as courts require high burdens of proof. However, religious beliefs are generally of a nature that cannot be scientifically proven, and requiring an attempt to prove or disprove them in court scientifically is highly unethical.

          Hobby Lobby is not a scientific organization; it does not have the resources or education to weigh in on the ongoing scientific debate regarding the exact impact of a medicine on an early stage fetus. Frankly, it would be unethical of them to represent their opinion as scientifically motivated. However, as a company, and as individuals the owners do have a right to hold religious convictions, and interpret the various costs and causes they encounter according to their principles. They feel, in good faith, they should not be required to facilitate access to drugs that might, however remotely, harm an unborn child.

          Such objectors have always represented this truthfully as a religious issue; it would be absurd to then hold them to the vigorous burden of scientific proof. Subjecting religious beliefs to scientific testing before society protects them is a dangerous proposition that could only erode the concept of freedom of religion. The protection or burden should not depend on the scientific validity of the belief, but rather society’s greater need as determined by an open democratic procedure. Here, the Freedom of Restoration Act, passed by our elected officials, sets a very high standard before a religious burden can be placed.

          • “I dispute the notion that companies and owners have no morally significant role in how this “income” is used, and are thus not impacted by the requirement to facilitate contraceptive coverage”

            They should be considered to have the same morally significant role as how their other income is used… i.e. none.

            “I also dispute as grossly inappropriate the need to scientifically validate religious beliefs before they receive due protection under the law. ”

            I don’t believe one needs to validate religious beliefs to get protection under the law. I am not saying they should have to prove that they believe that preventing an embryo from implanting is a sin. I am saying they should have to prove that the pills actually block the embryo from implanting.

            “The ruling is based on a law that requires any burden placed on religious beliefs to be the least impactful, which is an intuitively fair ideal.”

            I agree that burdens on religious beliefs should be least impactful. Coverage of oral contraception is non-impactful for the 2 reasons I listed (they don’t abort, and the employees pay for them with their labor).

            “Hobby Lobby is not a scientific organization; it does not have the resources or education to weigh in on the ongoing scientific debate regarding the exact impact of a medicine on an early stage fetus. ”

            Fine. Then they can resort to using the scientific findings of others which show no evidence of how they claim the pills work.

            ” They feel, in good faith, they should not be required to facilitate access to drugs that might, however remotely, harm an unborn child.”

            Hooray! We ignore the findings of others who are experts because of feelings.

            “Such objectors have always represented this truthfully as a religious issue; it would be absurd to then hold them to the vigorous burden of scientific proof. ”

            Again, two different things. That they believe the embryo is worthy of protection and view anything that prevents implantation as a sin is the religious belief. They should not have to prove that. But when they say that these pills prevent the implantation, that is not a religious belief. Period.

  2. Jack,
    What especially upsets me is the characterization that Hobby Lobby (henceforth known as “HL” .. I really hate saying their name) is trying to ban it’s female employees from using contraception. Granted, it’s no longer covered under their plan, but since when does “refusing to pay for” equate to “prohibiting the use of”? Besides, there exist a number of other ways one can acquire IUDs or Plan-B without going through your normal insurance carrier.

    It’s even more upsetting those who oppose the decision tend to use the blanket term of “contraception” as though HL were somehow opposed to all forms of birth control. Prior to the Affordable Health Care mandate, they covered all 20 of the FDA-approved contraceptive methods and have since only reduced that number by four. I’m confused as to how their objection to specific procedures or methods accounts to an all-out condemnation of the practice in general.

    Finally, I don’t see how the Supreme Court itself has decided it’s “against” women, as they’re simply affirming HL’s right to limit coverage coverage. Have we grown so accustomed to living in the First World that we equate a lack of choice with an all-encompassing prohibition? If my local grocery store decided to stop carry Velveeta, would that make them anti-cheese (a tenuous example, as Velveeta can hardly be characterized as cheese)? CVS recently decided to stop carrying tobacco products, does that equate to all-out ban on the behavior (which may soon happen, but not because of CVS)?

    Now, if you’ll excuse me, I’m going to bore a hole in my skull before my head explodes.

    -Neil

    PS: Final point (really this time): If HL employees feel so burdened by the rule, why not seek employment elsewhere? It’s not as though their the only employer, retail outlet, or craft store. They’re not even one of the biggest.

    • The ruling itself opens the door to other companies challenging their requirements to cover any contraception (as is shown by the SCOTUS action today to require lower courts to look at such cases under the new judicial precedence set by the ruling). That is what had supporters of the contraception mandate worried, it is what Justice GInsburg voiced in her dissent, and it only took a couple of days for those fears to be held true.

      There is an equal protection under the law problem to consider here as well. The law states that women must be able to obtain oral contraception at 100% first dollar coverage. Denying some women that ability is a failure to give persons equal protection under the law as guaranteed by the 14th amendment. So if someone has the right to be protected equally under the law, why should it matter what job they have?

      • The ruling itself opens the door to other companies challenging their requirements to cover any contraception (as is shown by the SCOTUS action today to require lower courts to look at such cases under the new judicial precedence set by the ruling). That is what had supporters of the contraception mandate worried, it is what Justice GInsburg voiced in her dissent, and it only took a couple of days for those fears to be held true.

        so what?

        Congress created the legal basis for such things.

        The law states that women must be able to obtain oral contraception at 100% first dollar coverage. Denying some women that ability is a failure to give persons equal protection under the law as guaranteed by the 14th amendment. So if someone has the right to be protected equally under the law, why should it matter what job they have?

        The law does not say that- an executive regulation says that.

        This denial is done by private entities. Generally, private action does not arise to 14th Amendment violations.

    • Yes, Neil, good exposition on some of the more common and vociferously-made objections. One shouldn’t have to agree with the decision to agree with everything you wrote. Justice Ginsberg doesn’t helps with her over-the-top dissent, which itself paints a coming Apocalypse. Contrary to the mainstream media would have us think, it is the liberal wing of the Court that more frequently appears to have an ideological agenda.

      • Of the 6 cases disposed of the day after the decision,one involves all forms of contraception whatsoever, and the decision of the lower court that these can be excluded is left undisturbed.

        So it’s not about “abortifacients”,it’s solely about religious belief. In this case that contraception is wrong, but in general, any belief, factually based or not.

        The RFRA uses words such as ““Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

        “Substantial” was always something that had to be interpreted reasonably. Here it has not been IMHO, though others may reasonably differ. It would be difficult to find an example of less substance though. The word has effectively been removed when it comes to conservative christianity (only).

        The law provided an exception if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest”. The second condition is that the rule must be the least restrictive way in which to further the government interest.

        “Compelling government interest” apparently means regarding Strict Scrutiny only or possibly Intermediate too. Rational basis scrutiny doesn’t apply. So apparently discrimination on the basis of race is right out, but on the basis of sex might be OK… and anything not covered by Strict or Intermediate scrutiny is OK.

        Moreover, “least restrictive” now means that any fanciful measure that’s infeasible to introduce – such as universal free healthcare in the US – as long as it’s not constitutionally obviously impossible, merely very constitutionally dubious, is now seen as an alternative.

        So, for example, government provided contraception instead of requiring insurance companies to cover it. That was the alternative the SCOTUS proposed. A little land-mine buried in the decision.

        The restriction to “closely held” companies is almost meaningless, as 70% of the workforce is employed by companies that qualify, despite them being “limited liability”. The corporate veil is apparently a semi-permeable membrane.

        It would be interesting to see if some lawyer argues that since corporations are people, with religious beliefs and freedom of speech, then the franchise should be extended to them too. While this doesn’t pass the “giggle test”, the SCOTUS’s logic genuinely does provide a good argument that it should – despite the bizarre and undesirable consequences.

        • And how about this little bait-and-switch?

          Under the Religious Freedom Restoration Act, the government has to show it has pursued the least restrictive means to accomplish its goal. Alito claimed that because the nonprofit accommodation exists, that means the government has other ways to get women access to contraception that respects religious liberty. Yet only a few days later, he ruled that the nonprofit accommodation – again, signing a form – is also a violation of religious liberty.

          http://www.msnbc.com/msnbc/sotomayor-blistering-dissent-contraception-case

          • Not a bait and switch, but admittedly throwing meat to wolves, and certainly legal sleight of hand, and even deceit. But he cited the accommodation to show other means could be found. That this particular means might be found flawed doesn’t disprove the proposition.

            And this, from Sotomayor’s dissent— “Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened … does not make it so. Not every sincerely felt ‘burden’ is a ‘substantial’ one, and it is for courts, not litigants, to identify which are.” The law’s language has to mean that the believer reasonably feels that his belief is being substantially burdened, given those beliefs. Under Sotomayor’s construction, every religious belief could be judicially found to be trivial.

            Blame the law, the Congress that drafted it, and the hypocrite—Bill Clinton—who signed it.

            • In Employment Division v. Smith, 494 U.S. 872 (1990), Justice Scalia noted a parade of horribles that would arise from adopting the respondents’ arguments. Smith, 494 U.S. at 889 fn. 5. In enacting the RFRA, Congress essentailly adopted Justice Blackmun’s dissent.

            • The law’s language has to mean that the believer reasonably feels that his belief is being substantially burdened, given those beliefs. Under Sotomayor’s construction, every religious belief could be judicially found to be trivial

              Correct.

              And under any other construction, any religious belief has to be found to be substantially burdened by any limitation whatsoever, merely on the claimant’s say so. There is no option not to, no inquisition whether the belief is “sincere” or not has been found in practice to be feasible. The word “substantial” becomes as redundant as the word “sincere”. Your insertion of the word “reasonably” just shifts the decision point elsewhere, even further away from something objectively discernible.

              If I may mangle your phraseology:

              Under Marshall’s construction, every feeling about religious belief could be judicially found to be unreasonable.

              That’s what judges are there for, I thought. To determine if the burden is “substantial” or not. Here I feel that Sotomeyer is right, and the SCOTUS as a whole have dropped the ball and abdicated their judicial responsibility. If you look at Employment Division, Department of Human Resources of Oregon vs. Smith, 494 U.S. 872 (1990), you’ll see the following:

              The “compelling government interest” requirement seems benign, because it is familiar from other fields. But using it as the standard that must be met before the government may accord different treatment on the basis of race, see, e.g., Palmore v. Sidoti, or before the government may regulate the content of speech, see, e.g., Sable Communications of California v. FCC, is not remotely comparable to using it for the purpose asserted here. What it produces in those other fields — equality of treatment, and an unrestricted flow of contending speech — are constitutional norms; what it would produce here — a private right to ignore generally applicable laws — is a constitutional anomaly.

              … The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races

              The Religious Freedom Restoration Act instated just such a test – “compelling government interest” – but then de-fanged that by requiring substantial burden.

              Remove that requirement, and there is no longer any barrier to any of the above, as Ginsberg has said. Those words were Scalia’s, I believe.

              • Again—the problem is the law, and its elevation of a Constitutional mandate—the state is prohibited from establishing a state religion or interfering with religious observance—to an untenable degree. But the law is the problem. The Supreme Court prompts the removal of bad laws by making the country live by them, as it should. Example: the Kelo case, which showed how out of hand the doctrine of eminent domain had become.

                Liberals like to deal with bad laws by just ignoring them, violating them, changing them on the fly to suit the occasion, or rendering them gibberish with endless exceptions: See: The Affordable Care Act; Florida’s election laws. Conservatives believe you must follow the letter of the law even if you get an absurd result, and change the laws that get such results. I think its obvious that while both approaches have serious drawbacks, the conservative approach is much safer in the long run and consistent with the rule of law.

        • As I said, I’m not especially interested in the decision, just how it is being misrepresented. As Volokh explains, a law that forces individuals to take part—finance—an act they honestly believe violates their faith–can be found to violate the pre-existing statute. To them, that’s substantial—again, I don’t see whether the belief is factually based matters.

          Since 70% of the work force doesn’t work for closely held corporations where the close-holders have a religious objection to contraception—you know, nut cases—I don’t think that figure is meaningful or ominous. I also think its inflated.

          Making some women choose between working elsewhere or paying for their own contraception? Sorry, I don’t see that as reasonably trumping the objectives of the RFRA…a Clinton signed law, by the way, and a bad one, like DOMA, the result of pandering. It goes way beyond the Establishment Clause, like the druggist conscience clauses. I think the decision is right, given the RFRA. I think the law should be repealed.

          • It goes way beyond the Establishment Clause, like the druggist conscience clauses.

            Both those clauses and the contraceptive mandate interfered with the employer-employee relationship.

        • zoebrain, your last paragraph makes an excellent point, with which I strongly agree. In fact my only question for Justice Alito would be, “WHY does your decision apply only to birth control?” That is a question for which there is no answer — or at least no answer that anyone styling himself a judge would be able to say out loud without feeling like a fool. It is to blush.

          This line of reasoning leads me to conclude that, just as with Bush v Gore, not only did the court majority make a wrong “narrow” decision, they knew perfectly well that it was wrong. Else why work so hard to artificially narrow it?

          • Your contention about Bush v. Gore is virtually libelous and wrong on ethics, the law, and the facts. Under no scenario was Gore going to win. The lack of a consistent state-wide standard for determining a valid vote was fatal (because the partisan Florida Court rejected the existing standard on the fly AFTER the votes were cast). SCOTUS didn’t send the case back to the state court, because the state court had proved itself incapable of fixing the problem. The case was also sui generis…it was going to be a narrow decision no matter how it was decided.

            As for the rest, SCOTUS narrowed the law to prevent stare decisus dictating expansions of a general principal that isn’t warranted or wise. Two subjective concepts are at issue in the (bad)law, and the point with contraception is that it doesn’t have to be handled in such a way that it’s a zero sum game, with either religious rights or reproductive rights losing to the other. This is standard practice with the Court, and makes sense over the long haul.

            Saying the Court ever intentionally decides a case wrongly is outrageous, unfair and unwarranted. It also can get a lawyer suspended.

            • As for the rest, SCOTUS narrowed the law to prevent stare decisus dictating expansions of a general principal that isn’t warranted or wise. Two subjective concepts are at issue in the (bad)law, and the point with contraception is that it doesn’t have to be handled in such a way that it’s a zero sum game, with either religious rights or reproductive rights losing to the other. This is standard practice with the Court, and makes sense over the long haul.

              There are plenty of examples to choose from. for example, earlier this year, the Ninth Circuit reversed a county sheriff’s decision to deny a concealed carry permit to an applicant. In their ruling, they noted that state law prohibited open carry of firearms, and that a permit is required to carry firearms concealed. They did not strike down any state statute as unconstitutional.

              also note the difference between facial and as-applied challenges.

          • zoebrain, your last paragraph makes an excellent point, with which I strongly agree. In fact my only question for Justice Alito would be, “WHY does your decision apply only to birth control?” That is a question for which there is no answer — or at least no answer that anyone styling himself a judge would be able to say out loud without feeling like a fool. It is to blush.

            Because an RFRA challenge often relies on facts specific to the parties.

        • It’s still over the top.
          Let’s just look at the 8 favorite quotes from the dissent as identified by similarly over-the-top feminist, pro-abortion on demand Mother Jones:

          “In a decision of startling breadth,” would allow corporations to opt out of almost any law that they find “incompatible with their sincerely held religious beliefs.”

          Wrong. Since the decision is limited to closely held corporations where the owners and their homogenous religious beliefs are indistinguishable from the corporate entity itself, this is neither of “startling breadth” nor applicable to “corporations.” And the decision iself rejects the “any law” interpretation explicitly.

          “The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage”

          Wrong, and ridiculous. First, the decision doesn’t cover all or even most contraceptives. Second, saying that the employer won’t pay for it isn’t the same as “denying” it. Woman can buy it, just like the rest of us buy lots of other things. Are we “denied” food because our employers won’t pay for it?

          “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”

          Ok, but irrelevant.

          “Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.”

          Wrong, and “What???” The requirement that Hobby Lobby must pay for it is propelled by the government, and that is the issue at hand, not the woman’s choice.

          “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”

          It doesn’t bear note. So if it was cheaper, Ginsberg would agree with the majority opinion? If a woman can’t afford contraception—which, by the way, Hobby Lobby is still obligated to pay for, just not every form of contraception—she can “choose” not to have sex.

          “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”

          No. Next question?

          “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.”

          Except that SCOTUS has already made such distinctions, and for decades.

          “The court, I fear, has ventured into a minefield.”

          Now there she’s right as rain.

          • “Since the decision is limited to…”
            But it isn’t since it is being used as a justification to require lower courts to reopen other cases previously ruled on, regardless of the type of organization and type of birth control blocked AND to enable cases like Wheaton to be granted a stay.

            “Wrong, and ridiculous. First, the decision doesn’t cover all or even most contraceptives.”
            Yet again it is being used as a reason to reopen cases on all the other forms of oral contraceptives.

            :Second, saying that the employer won’t pay for it isn’t the same as “denying” it. Woman can buy it, just like the rest of us buy lots of other things. Are we “denied” food because our employers won’t pay for it?”

            It is denying access to oral contraceptives covered at 100% first dollar if those contraceptives are the ones that Hobby Lobby deems “abortion pills” (none of which actually are). The whole “women can just buy it on their own” is a horrible argument. Why should certain women be forced to pay more money just because their employer has an objection, especially when she (or her spouse) already paid for the coverage with the labor provided to the employer?

            “Ok, but irrelevant.”
            It is relevant. What if an employer decides that they do not wish to stop at preventing premiums paid for with labor provided to the employer paying for oral contraceptives. What if another employer then says “you cannot use your paycheck to buy the pills either”? You think the latter is ridiculous? Well I think the former is just as ridiculous.

            “Wrong, and “What???” The requirement that Hobby Lobby must pay for it is propelled by the government, and that is the issue at hand, not the woman’s choice.”
            Well, they are not paying for it. The labor provided is. And even if you want to take the argument that money expended by Hobby Lobby is paying for it, that money pays for it more directly when they force the employee to pay for it out of pocket.

            “It doesn’t bear note. So if it was cheaper, Ginsberg would agree with the majority opinion?”

            No, she is just emphasizing the burdensome cost that the ruling will place on some women (just like the women who may have to use certain oral contraceptives for non contraceptive purposes who are now prevented from getting such pills on their plan and now have to pay even more money to get them and treat their conditions)

            “If a woman can’t afford contraception—which, by the way, Hobby Lobby is still obligated to pay for, just not every form of contraception—she can “choose” not to have sex.”

            These pills are not just used to prevent pregnancy. They are also used to treat various medical conditions. The reason why a doctor prescribes certain medications is NONE of the employers business. We have medical privacy laws for a reason.

            “No. Next question?”

            You say no, but since the law is already being used in ways that contradict the ruling by the same justices that ruled on it, I am not certain how you can be so confident.

            • 1. Dan, I don’t know what you mean by “is being used.” The Court can’t control misuse and misinterpretations, just like it can’t control hysterical exaggerations of its meaning by critics.

              2. You went from rights to fairness, as you see it. The category is “all women who work for Hobby Lobby,” not “all women.” A woman can ensure being treated like all women who don’t work for Hobby Lobby by choosing to work elsewhere.

              3. So it’s expensive. Nothing says a woman has to use expensive birth control.

              4. What I, or a business, pays for is my business, because it effects my business, and makes me an accessory to what I pay for. Sometimes the law forces me to—I may not like my tax dollars being used for a war I don’t like, but as a citizen, I’m still accountable for that war if my government fights it.

              5. “Well, they are not paying for it. The labor provided is. And even if you want to take the argument that money expended by Hobby Lobby is paying for it, that money pays for it more directly when they force the employee to pay for it out of pocket.” This makes no sense at all. Once the money is given to the employee, its the employee’s money. My clients don’t pay my rent—I do, because it’s my money. But the law makes religious people pay for what they consider a sin, with their money.

              6. Please stop making the argument that the science is wrong. It doesn’t matter. This is faith and religion. Even Ginsberg acknowledges that.

              • “1. Dan, I don’t know what you mean by “is being used.” The Court can’t control misuse and misinterpretations, just like it can’t control hysterical exaggerations of its meaning by critics.”

                The Supreme Court itself is using its new ruling in Hobby Lobby to tell lower courts to reexamine past rulings. It is also granting the stay in Wheaton. The Supreme Court can ABSOLUTELY control misuse of rulings it made days prior.

                “You went from rights to fairness, as you see it. The category is “all women who work for Hobby Lobby,” not “all women.” A woman can ensure being treated like all women who don’t work for Hobby Lobby by choosing to work elsewhere.”

                The law was written so that no matter where you (or the person getting insurance on behalf of you) worked, if you have insurance you get oral contraception at 100% first dollar coverage. Now it is a crap shoot.

                “3. So it’s expensive. Nothing says a woman has to use expensive birth control.”

                If the doctor says that pill X is what the woman needs (either because of bad reactions to other pills or because the other condition she has requires X) then that woman would have to use that pill. It shouldn’t be up to Hobby Lobby to interfere with the doctor/patient relationship.

                “4. What I, or a business, pays for is my business, because it effects my business, and makes me an accessory to what I pay for. Sometimes the law forces me to—I may not like my tax dollars being used for a war I don’t like, but as a citizen, I’m still accountable for that war if my government fights it.”

                The labor of your employees pay for all benefits provided as compensation for that work. Should a Jewish employer be able to prevent an employee from buying a ham sandwich with his/her paycheck?

                “This makes no sense at all. Once the money is given to the employee, its the employee’s money. My clients don’t pay my rent—I do, because it’s my money. But the law makes religious people pay for what they consider a sin, with their money.”

                I am not talking about your rent. I am talking about benefits given as compensation in lieu of pay. If the ham sandwich an employee buys with his/her salary is paid for by the employee then the oral contraception received as a benefit of the health insurance received as a benefit in lieu of pay should also be considered paid for by the employee.

                “6. Please stop making the argument that the science is wrong. It doesn’t matter. This is faith and religion. Even Ginsberg acknowledges that.”

                It should matter because “pill x stops embryonic implantation” is not a religious belief any more than “the world is flat” was. Either the world is flat or it is not. Either those pills stop embyonic implantation or they do not.

                • “1. Dan, I don’t know what you mean by “is being used.” The Court can’t control misuse and misinterpretations, just like it can’t control hysterical exaggerations of its meaning by critics.”

                  The Supreme Court itself is using its new ruling in Hobby Lobby to tell lower courts to reexamine past rulings. It is also granting the stay in Wheaton. The Supreme Court can ABSOLUTELY control misuse of rulings it made days prior.

                  Again, I don’t know what you think you are talking about. The Supreme Court can’t make a general order to lower courts to reconsider past decisions. There have to be specific cases, and they have to be appealed.

                  2. “You went from rights to fairness, as you see it. The category is “all women who work for Hobby Lobby,” not “all women.” A woman can ensure being treated like all women who don’t work for Hobby Lobby by choosing to work elsewhere.”

                  The law was written so that no matter where you (or the person getting insurance on behalf of you) worked, if you have insurance you get oral contraception at 100% first dollar coverage. Now it is a crap shoot.

                  The law at issue was the Religious Freedom Restoration Act. If Obamacare was in violation of that law, then it had to yield. It may be a bad law, but that’s not Scotus’s job. It’s not a crapo shoot if you don’t work for a religious organization or a company owned by a couple of religious zealots.

                  “3. So it’s expensive. Nothing says a woman has to use expensive birth control.”
                  If the doctor says that pill X is what the woman needs (either because of bad reactions to other pills or because the other condition she has requires X) then that woman would have to use that pill. It shouldn’t be up to Hobby Lobby to interfere with the doctor/patient relationship.

                  Oh, for god’s sake—if I’m paying for it, I’m part of that relationship. You can’t tell a company or an individual “you must pay for for X’s conduct,” and say “but you can’t have any say in it even though doing so violates your core principles. How do you even reach such an oppressive point of view?

                  “4. What I, or a business, pays for is my business, because it effects my business, and makes me an accessory to what I pay for. Sometimes the law forces me to—I may not like my tax dollars being used for a war I don’t like, but as a citizen, I’m still accountable for that war if my government fights it.”

                  The labor of your employees pay for all benefits provided as compensation for that work. Should a Jewish employer be able to prevent an employee from buying a ham sandwich with his/her paycheck?

                  You really don’t see the difference between you receiving money, which becomes yours, allowing you to do whatever you want with it without my having any part in the transaction, and me being forced to pay for something it is against my principles to buy, with MY money? Because they are not the same thing. A: your money. B. My money.

                  5. “This makes no sense at all. Once the money is given to the employee, its the employee’s money. My clients don’t pay my rent—I do, because it’s my money. But the law makes religious people pay for what they consider a sin, with their money.”

                  I am not talking about your rent. I am talking about benefits given as compensation in lieu of pay. If the ham sandwich an employee buys with his/her salary is paid for by the employee then the oral contraception received as a benefit of the health insurance received as a benefit in lieu of pay should also be considered paid for by the employee.

                  But it’s not the same as pay. It isn’t taxed, for example. Nor is it voluntary benefits agreed to by the two parties. It is a mandatory benefit dictated by the government, and the Constitution and the Religious Freedom Restoration Act limit what the government can force a citizen to do. You’re just ignoring what the decision is about.

                  “6. Please stop making the argument that the science is wrong. It doesn’t matter. This is faith and religion. Even Ginsberg acknowledges that.”

                  It should matter because “pill x stops embryonic implantation” is not a religious belief any more than “the world is flat” was. Either the world is flat or it is not. Either those pills stop embryonic implantation or they do not.

                  That’s not the religious belief. The religious belief is that life begins at conception, and conception precedes implantation. And, by the way, sometimes they do, and sometimes they don’t.

                  What opponents of this decision don’t want to acknowledge is that the Court has taken the stand that freedom of religious expression, which is specifically enshrined in the Constitution and bolstered by the Religious Freedom Restoration Act , trumps, in appropriate cases, guaranteed access to some forms of free health care, a law-bestowed privilege that is NOT so enshrined. That makes perfect sense, except to those who 1) have nothing but contempt for religious beliefs and freedom and 2) regard birth control issues as trumping everything.

                  • “Again, I don’t know what you think you are talking about. The Supreme Court can’t make a general order to lower courts to reconsider past decisions.”

                    Several news sources have said otherwise: http://www.cleveland.com/open/index.ssf/2014/07/us_supreme_court_orders_recons.html

                    “The U.S. Supreme Court followed up on Monday’s controversial Hobby Lobby decision by ordering lower courts to reconsider other cases of companies with religious objections to providing birth control coverage in their workers’ insurance, including one brought by a Dayton-area produce purveyor.”

                    “Oh, for god’s sake—if I’m paying for it, I’m part of that relationship.”
                    You shouldn’t be (mainly because you are not paying for it)

                    “You can’t tell a company or an individual “you must pay for for X’s conduct,””
                    Conduct? Taking oral contraception implies no particular conduct. A woman might take it to regulate her cycle, to prevent ovulation or fertlization, to treat hormonal issues, etc. And under HIPAA none of that information is her employers (or her spouses/parents employers) business.

                    “How do you even reach such an oppressive point of view?”
                    I do not see how my point of view is at all oppressive because I see no harm done to their beliefs.

                    “You really don’t see the difference between you receiving money, which becomes yours, allowing you to do whatever you want with it without my having any part in the transaction, and me being forced to pay for something it is against my principles to buy, with MY money? Because they are not the same thing. A: your money. B. My money.”

                    I see no difference in a premium dollar provided in lieu of pay vs pay. The argument that you are making is that an employer paying $60K and saying “you can pay these premiums if you want as a pre-tax deduction” is completely different than if the employer pays $50K and instead says that $10K in pay wont be on your pay stub and instead will automatically be a premium. The premium dollar paid should be considered no different than the movie ticket I buy.

                    “And, by the way, sometimes they do, and sometimes they don’t.”
                    They do not. Again, 0 evidence exists showing that these pills prevent a created embryo from implanting. If that evidence actually existed I wouldn’t be making that argument. People, including experts, used to believe that implantation was inhibited by oral contraception. That is no longer the case.

                    “What opponents of this decision don’t want to acknowledge is that the Court has taken the stand that freedom of religious expression, which is specifically enshrined in the Constitution and bolstered by the Religious Freedom Restoration Act , trumps, in appropriate cases, guaranteed access to some forms of free health care,”

                    A) It is not free. If I work for it, it is not free.

                    B) Opponents of this decision have no problem with religious expression. What we have a problem with is labeling things as religious expression that should (as we see it) clearly not be labelled as such.

                    • 1. “Again, I don’t know what you think you are talking about. The Supreme Court can’t make a general order to lower courts to reconsider past decisions.”

                      Several news sources have said otherwise: http://www.cleveland.com/open/index.ssf/2014/07/us_supreme_court_orders_recons.html

                      Those are SPECIFIC cases, brought to the court on appeal. That’s what the court does. SCOTUS does not, as you stated, issue a general order for all lower courts to reconsider cases.

                      “Oh, for god’s sake—if I’m paying for it, I’m part of that relationship.”
                      You shouldn’t be (mainly because you are not paying for it)


                      What new procrustian fantasy is this? If I am the one paying for the insurance, I’m the one paying for it.

                      “You can’t tell a company or an individual “you must pay for for X’s conduct,””
                      Conduct? Taking oral contraception implies no particular conduct. A woman might take it to regulate her cycle, to prevent ovulation or fertlization, to treat hormonal issues, etc. And under HIPAA none of that information is her employers (or her spouses/parents employers) business.

                      Dan, using a device or taking a pill is conduct. If it’s conduct my religion prohibits in my view, then the government is making me an accomplice to it. You can’t wiggle around that.

                      “How do you even reach such an oppressive point of view?”
                      I do not see how my point of view is at all oppressive because I see no harm done to their beliefs.

                      That’s because they aren’t your beliefs. What you think literally doesn’t figure into this at all.

                      “You really don’t see the difference between you receiving money, which becomes yours, allowing you to do whatever you want with it without my having any part in the transaction, and me being forced to pay for something it is against my principles to buy, with MY money? Because they are not the same thing. A: your money. B. My money.”

                      I see no difference in a premium dollar provided in lieu of pay vs pay. The argument that you are making is that an employer paying $60K and saying “you can pay these premiums if you want as a pre-tax deduction” is completely different than if the employer pays $50K and instead says that $10K in pay wont be on your pay stub and instead will automatically be a premium. The premium dollar paid should be considered no different than the movie ticket I buy.

                      Well, that’s fantasy. It makes all the difference in the world in terms of agency and accountability. The difference is whether the employee is the middleman, or not.

                      “And, by the way, sometimes they do, and sometimes they don’t.”
                      They do not. Again, 0 evidence exists showing that these pills prevent a created embryo from implanting. If that evidence actually existed I wouldn’t be making that argument. People, including experts, used to believe that implantation was inhibited by oral contraception. That is no longer the case.

                      You overstate the certainty (I overstated the uncertainty). In a well-balanced post by Jonathan Adler at Volokh, he addresses this:

                      “Some critics note that current scientific evidence undermines claims that the four methods at issue prevent implantation. This is true, but also fails to substantiate the Hobby Lobby-is-anti-science claim. The best scientific evidence available suggests that these forms of contraception rarely, if ever, prevent implantation, but the evidence is not-yet-conclusive and RFRA plaintiffs are hardly required to adopt prevailing scientific views to press their claims. As Nicholas Bagley notes:

                      Scientists can demonstrate that the challenged forms of birth control almost never prevent implantation of a fertilized egg. But it’s very hard for scientists to prove that it can never happen.

                      That’s where religion comes in. Does facilitating the use of contraception that might conceivably prevent implantation, even if that risk is very low, contravene some religious precept? Science can’t answer that question. A religious person might think that it’s wrong—sinful—to commit an act that presents a risk, however remote, of something very bad. Should the courts be in the business of second-guessing those kinds of religious claims? Among other things, doing so raises the possibility that the courts would uphold mainstream religious values while dismissing religious views they thought were kooky.

                      It’s just not settled, and if its not settled, a religious individual has every right to take a minority view and act on it as his religions dictates.

                      “What opponents of this decision don’t want to acknowledge is that the Court has taken the stand that freedom of religious expression, which is specifically enshrined in the Constitution and bolstered by the Religious Freedom Restoration Act , trumps, in appropriate cases, guaranteed access to some forms of free health care,”
                      A) It is not free. If I work for it, it is not free.
                      B) Opponents of this decision have no problem with religious expression. What we have a problem with is labeling things as religious expression that should (as we see it) clearly not be labelled as such.

                      Sorry. You don’t get to declare that my religious expression doesn’t meet your standards. You have no basis to make that call.

                    • Jack: Several sources are saying that SCOTUS has directed the lower courts to re examine previous rulings. Not just a simple appeals process.

                      You are not the one paying for insurance. I am paying for it with my labor JUST LIKE I PAY FOR MY WAGES WITH MY LABOR. It is all very simple. That you reject that very simple concept doesn’t make it so.

                      For you to say that Hobby Lobby pays for the pills is to say that Hobby Lobby pays for my movie tickets, or food, or any other item that I obtain from compensation given to me for working for my employer.

                      I don’t need something to be part of “my beliefs” in order for them to be a protected belief. Please give me a little more respect than that. I don’t believe that Jesus Christ died on a cross for the sins of humanity (raised Jewish). That is a religious belief. The owners of Hobby Lobby shouldn’t have to prove that in court. The owners of Hobby Lobby should have absolutely needed to prove that the pills act in the way that they claim.

                      Adler makes a logical fallacy. He says that the critics of the rulings should prove a negative. I cannot prove that something never happens. Asking someone to prove a negative is silly. It is why we do not ask people to prove that they did not do some act in criminal court. If a claim is made that pill X does Y… it is not up to me or any of the other rulings of the critics to prove that it does not do Y. It is up to the people claiming that Y happens to prove that Y happens. That is how our legal system works. I am surprised you would call Adlers argument well reasoned.

                      Courts shouldn’t second guess religious claims. The claim that a pill has a certain effect on the body of a woman is not a religious claim. It is a medical claim. And if it that effect cannot be proved then we should not be allowing people to use that effect in a court ruling.

                    • 1. Several sources are saying that SCOTUS has directed the lower courts to re examine previous rulings. Not just a simple appeals process.

                      Those sources are mistaken, or you are misreading them. The one you cited doesn’t say that.

                      2. You are not the one paying for insurance. I am paying for it with my labor JUST LIKE I PAY FOR MY WAGES WITH MY LABOR. It is all very simple. That you reject that very simple concept doesn’t make it so.

                      You pay for what you buy with your money, after it becomes yours. That’s all. If an employer buys something and is forced to give it to you, you still didn’t buy it. The employer did.

                      3. “For you to say that Hobby Lobby pays for the pills is to say that Hobby Lobby pays for my movie tickets, or food, or any other item that I obtain from compensation given to me for working for my employer.”

                      That’s just not true, Dan. If you get a car as part of your compensation, the employer buys the car, and you get it from the employer. Same here.

                      4.I don’t need something to be part of “my beliefs” in order for them to be a protected belief. Please give me a little more respect than that. I don’t believe that Jesus Christ died on a cross for the sins of humanity (raised Jewish). That is a religious belief. The owners of Hobby Lobby shouldn’t have to prove that in court. The owners of Hobby Lobby should have absolutely needed to prove that the pills act in the way that they claim.

                      How would they do that? As Adler pointed out, and others, it’s not certain, and can’t be proved. It doesn’t matter if I think an action of mine compelled by the government WILL result in what I regard as murder, or MIGHT result.

                      5. Adler makes a logical fallacy. He says that the critics of the rulings should prove a negative. I cannot prove that something never happens. Asking someone to prove a negative is silly. It is why we do not ask people to prove that they did not do some act in criminal court. If a claim is made that pill X does Y… it is not up to me or any of the other rulings of the critics to prove that it does not do Y. It is up to the people claiming that Y happens to prove that Y happens. That is how our legal system works. I am surprised you would call Adlers argument well reasoned.

                      You are the one making the mistake. It’s called the burden of proof, and it rests on those asserting that the religious belief isn’t being infringed, because the protection of such beliefs is guaranteed by law and the Constitution. If proving that requires proving a negative, too bad. The burden of proof can’t be met, and in this case, it wasn’t.

                    • “Those sources are mistaken, or you are misreading them”

                      Is SCOTUSBLog a good enough source?
                      “In three cases in which a federal appeals court had rejected the challenges to the mandate, the new Supreme Court orders told those courts to reconsider, applying Monday’s decision. ”

                      http://www.scotusblog.com/2014/07/wider-impact-of-hobby-lobby-ruling/

                      “How would they do that? ”

                      That would be up to them (as to how they would prove their medical opinions valid. Stating that certain pills inhibit embryonic implantation is a medical opinion and not a religious belief.

                      “You are the one making the mistake. It’s called the burden of proof, and it rests on those asserting that the religious belief isn’t being infringed, because the protection of such beliefs is guaranteed by law and the Constitution. If proving that requires proving a negative, too bad. The burden of proof can’t be met, and in this case, it wasn’t.”

                      RFRA doesn’t require government to prove that religious beliefs are not infringed. It requires that governmental requirements must be a furtherance of a compelling government interest and that it must do so by the least restrictive means.

                      But in order for government to defend its actions as being furthering government interests in a least restrictive way, Hobby Lobby should have to present the harm that is being done. Because if no harm is done there is no basis to bring the lawsuit.

                    • ARGHH! Told THOSE courts in specific cases to reconsider specific cases under appeal!!!! That is not the same as “ordering lower courts” to reconsider all such cases. Jesus.

                    • I didn’t say that they ordered all the courts did I? Jus tthat the ordered lower courts to do so.

                    • You said SCOTUS ordered lower courts to reconsider cases. The most obvious meaning of that is that it was a general order. If you meant a specific order to specific courts regarding specific cases, you should have said so, and so should the sources that phrased it similarly. If a report says that SCOTUS orders states to comply with its decision, I don’t assume that it is only ordering some states.

                    • Any statement lacking quantitative descriptors should be interpreted as Universals.

                      “Ships sink in the Atlantic.”

                      Does in no way mean “Some ships sink in the Atlantic” or “the titanic sank in the Atlantic”. It only means “All ships sink in the Atlantic.”

                      Dan is just shrimping out of his error.

                    • I reject the assertion that your interpretation was the most obvious.

                      Regardless, my initial point stands. The court ruling is not as narrow and limited as you (and the conservative members of the court) claimed it was based on the order given to those lower courts to do so.

                    • I can’t stand this anymore Dan. I’ve tried to sit by and watch your juvenile logic. I call it juvenile because it reminds me of elementary school, when a teacher has clearly explained something to the class jerk and instead of admitting error and saying thank you, continues to plug OBVIOUSLY ignorant comments to pretend like the teacher isn’t explaining.

                      You are being willfully ignorant at this point.

                      Your compensation is not “paid for” by your labor. “Paid for” is a completely monetary term outside of a barter economy. Money, represents absolutely nothing, except to the person it currently, legally belongs to. Only the legal holder of any specific dollar can decide what valued goods they wish to attach to that dollar.

                      Until Hobby Lobby physically surrenders control of that money, it represents the values of Hobby Lobby. Compelling HL to spend that money in ways that grossly violate HL’s beliefs is compelling HL. After HL surrenders the money willingly to an employee as compensation for labor, it no longer represent HL’s value system or objectives.

                      You are playing ignorant games with the moral distinction of property ownership and the surrendering of.

                      Your movie ticket analogy is absolutely stupid. HL gives you $20… You can do whatever the hell you want with it, including buying movie tickets. HL gives you $20 worth of movie tickets that you don’t want. You’d bitch and moan. Well, now you want to compel HL to give away movie tickets it doesn’t want to give in lieu of money it could give… But now you whine when HL bitches and moans.

                      Quit being blatantly pretend stupid.

                    • Hobby Lobby is compelled to pay wages that meet or exceed the minimum wage.

                      Hobby Lobby is compelled to provide health insurance coverage that meets certain minimum standards.

                      The wages once paid, belong to the employee.

                      The health insurance policy, provided in lieu of pay, belongs to the employee.

                      The employer should have no say in how those wages are used.

                      The employer should have no say in how that insurance is used.

                      Your insults only discredit your arguments, they do not disprove mine.

  3. Question: Do the actual employees of Hobby Lobby care that much? Were they actively involved in the lawsuit or is this something that another “interested party” (or parties) decided to pursue?

    • The case was begun when Hobby Lobby a.k.a. the Greens, sued the US alleging that the ACA violated its rights under the the Free Exercise Clause of the First Amendment to the United States Constitution and the Religious Freedom Restoration Act.

      • Why is this such a confusing mess? Because insurance is not a right to begin with. Since it isn’t a, treating it as one for a premise can only lead to illogical conclusions.

        Medical insurance is just one more compensation for labor provided, therefore it reflects the values of the employers. Simple and easily tailored to a wide variety of market conditions and demands.

        • Maybe there is no right to “insurance” per se, but in today’s world there must be a right to medical care. Even the Roberts Court seems to have recognized that when they upheld the ACA itself.

          • You don’t understand the law or how courts work. The Court doesn’t make policy or decisions based on what policy “should” be. That’s the Congress’s job. The Court decides whether the law has been passed within the limits defined under the Constitution’s provisions and the Court’s interpretations of those provisions. The mandate decision had nothing, nada, nothing whatsoever to do with rights to health care. The issue was the Commerce Clause, its limitations, and whether the mandate was really a tax.

            I don’t know what you think “in today’s world there must be a right to medical care” means, but there isn’t any such “right.” It’s a policy decision, like any other. It is no more a right than my “right” to spend the money I earn for my health care and that of my family rather than be forced to spend it on yours.

          • Is a right to medical care “deeply rooted in our Nation’s history and tradition”, Washington v. Glucksberg, 521 U.S. 702 at 721M (1997), or explicitly enumerated in the Constitution? Icf not, it is not a right.

  4. Obama’s Twitter account…see his ‘Throwback Thursday’ Tweet.

    In part- ” Throwback to last week when a woman—not her boss—made her own decisions about her health care”

    The POTUS is publicly slamming the Supreme Court. Maybe it’s always been done, but really? The President on Twitter?

    Facebook is blowing up with hypocrisy allegations because Hobby Lobby’s 401k plan includes investment in drug companies, some of which allegedly make the birth control HL is against. No matter what your religion, I don’t think you can limit the stocks your employees can invest in.

    • “No matter what your religion, I don’t think you can limit the stocks your employees can invest in.”

      Of course you can. HL can choose not to provide their employees with the choice to invest in manufacturers of contraception they erroneously believe to be abortifacients, just like they can now choose not to provide their employees with the choice to use their health insurance to cover contraception they erroneously believe to abortifacients.

      The fact that they are totally fine with allowing employees the first option when they just sued the government to get out of allowing the second throws their “sincerely held belief” claim into serious doubt, and should get them proclaimed ethics dunces here for their blatant hypocrisy.

      • Paying for someone’s morning after pill makes the payer directly responsible for what the payer believes is ending a life. Investing in the company that makes and sells the drug does not. Profiting from another’s sinful act if you don’t cause the sin itself is not a direct religious belief violation, or at least a colorable argument could be made that this is the case.

        I personally would consider this a breach of integrity and principle, but not a per se contradiction.

  5. Ultimately, the whole issue is about freedom. Freedom for employers to decide what compensation to offer, and freedom for people to decide whether or not to accept a job offer based upon the compensation (including contraceptive coverage or lack thereof.)

    This is eerily similar to the issue of pharmacist’s refusing to hand out morning after pills despite their employer’s wishes, and despite the fact that their employer never agreed to exempt them from handing out morning after pills. Many of these pharmacists wanted to get the law involved, to either prevent their employers from firing them, or to forbid other pharmacies from refusing to hire pharmacists who will not hand out morning after pill.

    Here is the solution:

    If you are a pharmacist and you do not like that your employer requires you to hand out morning after pills, work somewhere else.

    If you are a pharmacist and you do not like the fact that your employer does not provide health coverage that includes contraception, work somewhere else.

  6. If all the pharmacists in CVS will dispense the pill but one of them, doesn’t that mean that you can get it? I don’t know why activists, petitions etc insist on 100% compliance….either all 4 pharmacists have to dispense the pill, or there’s a call to fire the one who objects to it.

    • Fire him. His job requires dispensing the products sold by the store. Nobody says he has to be a pharmacist. It is like the NBA player who doesn’t want to stand for the National Anthem. Sorry–it’s a duty that comes with the job. Comply, or do something else.

      • Many hospitals that offer a wide range of medical services allow their doctors to refuse to perform abortions. But there are two reasons justifying that a) doctors’ labor is very valuable to the hospital, b) doctors morally opposed to abortion would be very unlikely to have trained in performing the procedure.

        The number of people in the entire world who would come to the defense of a doctor who is morally opposed to performing abortions who complains of being denied a job as an abortionist in an abortion clinic could probably be counted on one hand- with a few missing fingers.

      • I would say, rather, that nobody says he has to be a pharmacist at CVS. I am inclined to allow pharmacies to opt not to carry various drugs for whatever personal reasons the owners have, but it’s well within the right of the owners to fire people who inconvenience their customers.

    • That was not my intent….in fact, it is the opposite of what I meant.

      I only meant that you clarified several of the points that have caused others to drill holes in their heads regarding this case. For example, “when does “refusing to pay for” equate to “prohibiting the use of”?” has been raised by some fire-breathers (Rush Limbaugh, for example) and others, like you, who take the point out of the extremist category by your recognition of its validity. Cognitive dissonance makes these kinds of cases hard to digest by onlookers who judge the criticism by the critic.

      That was all I meant.Don’t be confused

  7. Jack
    When I read this post on the third I wanted to immediately thank you for writing it. Unfortunately other things got in the way and I did not get the chance. Now, I have had the opportunity to see all the responses and I am not sure that all the readers understood the main point that you posited: Contorting and distorting factual information to advance a political issue is a breach of journalistic ethics.

    Those that use such distortions to advance their claims (including the female jurists mentioned) diminish their credibility by engaging in such behavior. Such behavior hurts our society because fiction becomes “truth” in the eyes of those wanting the fiction to be truth. Once we stop looking for truth we devolve into factions of the like minded. We ignore the obviously true in favor of the “convenient fiction” because it makes us feel stronger. Unfortunately, the benefits of reliance on fictions is short lived because we become confused about reality. It is likely that we will find many incongruities among competing fictions causing us great distress as we try to rationalize what convenient fiction we will discard in order to accept the new convenient fiction. Issues that are really true cannot be sacrificed because have they their own independent existence.

    Many respondents seem to focus on re-litigating the case, making arguments for and against the decision.

    If we eliminate all the hyper partisan elements out of the decision, my take on the issue comes down to whether an agency (HHS) rule does can trump a legislated statute.

    In this case, the question was does HHS’ rule making authority allow it to diminish the religious rights of others that are protected by the specific statute RFRA. I think not and the SCOTUS thought not as well.

    It is very likely that an agency run by the executive branch (controlled by one party) could use its rule making authority to frustrate the will of a Congress (controlled by the opposing party) to such a degree that the acts of Congress become irrelevant. This would effectively change the balance of power the voters demanded. In short, agencies become the vehicle for voter nullification.

    As I understand the facts in the case, the ACA does not specifically mandate the inclusion of all available drugs to be included in the formulary to be part of the “essential benefits”. I understand that HHS was tasked with creating a list of “essential services” which serves as the the minimum level of health measures to be covered by insurers. Many of these essential benefits come in the form of 100% coverage of preventative care to reduce the risk chronic illness that would otherwise result in higher long term medical expenses. The simplest solution to this issue would have been to have the employer’s insurance carrier be permitted to choose among the twenty contraceptive options rather than require it to reimburse for all drugs in the category.

    If we accept the premise that health care is a right and preventive care should be 100% covered by insurers then:

    By what criteria did HHS decide what is an essential services;

    Why did HHS not require insurers to cover the individual’s cost of public water, sewerage, and trash collection. These three items are most important basic preventative health care services. Without them our entire economy would collapse as we will most likely be stricken with a variety of disease vectors. The State has demonstrated a compelling interest in making sure that we all pay for these regulated commodities. The state will not grant an occupancy permit for any building that does not have water and sewer systems that meet the State’s minimum standards;

    Explain why the state believes that everyone has a duty to pay personally out of pocket hundreds of dollars per year (which I am willing to do) for public health services that benefit me and the community but does not feel that you have to pay anything for you to copulate at will without cost. I agree that no government or business has any place in a person’s bedroom. What I cannot understand is how you reconcile that premise with the premise that a third party should pay for the consequences of what takes place in the bedroom.

    Why are not all existing drugs be covered in the mandated formulary. For those asserting Fourteenth amendment claims against Hobby Lobby, if one population – women can get a drug for its health needs how do you justify HHS not including all drugs as a minimum essential service for other sexual and non-sexual reasons? It seems to me that the medical issue is irrelevant, and, unless the goal is only to create a divide between the genders, then there is no reason to pay for one medication and not another.

    On a final note, I think that if the government passes a law that requires an individual or other entity to use the legal system to secure its rights, then the government should be required to pay the legal costs of the plaintiff should the plaintiff prevail. The idea that the government has unlimited resources, provided by both those sympathetic to government and those opposed, to stave off any challenge is grossly unfair.

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