What’s new? I’m differing again with many scholars and pundits on the ultimate impact of a Supreme Court decision.
To backtrack even upon a closer reading, I maintain my earlier opinion of the Noel Canning decision and its future effect.
Earlier today, 30 June 2014, SCOTUS issued a 5 to 4 decision on BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC.,ET AL.
As always with me, I encourage you to go to your favorite and least favorite media sources for discussions and coverage of the case. I’ve linked the Court’s decisions and dissent above.
Many are translating this case as a First Amendment decision. It is not. The majority decision rests on the Religious Freedom Restoration Act of 1993 which itself was a response to a 1990 Supreme Court decision in Employment Division v. Smith.
In writing for the majority, Justice Scalia concludes on page 49:
“Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.
* * * The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.”
One take is obvious from Justice Scalia’s statement. The law upon which the majority rendered its decision was this 1993 bill passed by the 103rd Congress which had Democratic Party majorities in both Chambers and signed into law by President Bill Clinton. The 113th or a future Congress may pass a bill which in effect renders today’s decision obsolete.
Another aspect that I find missing from the media reports of those praising the decision is a failure to recognize where SCOTUS puts the responsibility for these for profit corporations to “provide” the required medical practices under existing law.
From the syllabus:
“Here, there is an alternative to the contraceptive mandate. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.”
“In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.”
Simply, SCOTUS has determined that while for profit corporations have the right to religious objections those items which the for-profit chooses not to provide to its employees will instead be provided by the government. In other words, public tax dollars will be used.
Justice Ginsburg on page 2 of her dissent opposes placing the burden on the taxpayers to benefit a for-profit corporation.
“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. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations.”
Once more, we have returned to the question of whether or not a corporation has the same rights as an individual.
Alright some are questioning my opinion because I seem to have avoided the two issues at stake in this decision. One issue being religious freedom and the other abortion.
Back in Baton Rouge, Bobby Jindal’s press release contains:
“For those of us who believe, as the Green family does, in an Almighty God who created the universe and loves us personally, our faith guides us every day: in what we will do, and in what we will not do.
What this decision affirms is that the American belief in freedom of religion still protects the rights of all Americans to live in accordance with their religion, and that these deeply held religious beliefs are more important than the whims and demands of government.”
For once I actually agree with Bobby with a small disclaimer being that I would add “and others” behind government.
Where we differ is that freedom applies to all faiths, not simply Catholicism or a Protestant form of Christianity. It applies to non-Christians, Agnostics, Atheists, and all others. Personally I believe in a Supreme Being or entity who I refer to simply as God or the Creator and in an individual named Jesus who died on the cross for the sins of all mankind. That’s my belief, but it isn’t any better or worse from what you believe. I look as freedom as I have the ability to believe as I choose and as long as my exercising that right does not infringe upon you from having the same ability to believe as you choose we are both free. The only way to be truly free is having the strength and courage to realize that you must sacrifice a minute portion of personal freedom to protect and preserve freedom. Personally I cannot view a corporation as religious as the purpose is to make profit. Individuals, however, can have religious or other beliefs which are true and dear to them.
In her dissent, Justice Ginsburg poses questions about possibilities that people with other religious beliefs may request exemptions from other medical and scientific services which others consider legitimate. Even though the majority believe that will not occur, her reasoning does illustrate the degrees to which we may differ in our beliefs.
I’m not addressing any debates on whether the specific procedures cited in these cases are contraception or abortion causing practices. Others can and will debate when a life begins. I’m not.
My abortion stance is quite simple. I do not believe in abortion as a means of birth control. Many take exception to my position as being too simplistic. I just think that each situation is different, the decision is not simple, and I don’t believe I have a right to decide if I am not directly connected and have access to all the known information. Even as a man, I may not know firsthand, but I have seen the pain and agony of many friends who have suffered miscarriages at various stages of pregnancy. I’ve talked with some of the fathers of these children, and felt their pain. These individuals did nothing intentional to end the pregnancy, yet that knowledge did little to ease the pain and diminish the guilt of “what if” even if “what” could not be defined. Sadly there are people out there who might have no emotional connection, but that is not the case with those I know.
I just don’t see any law addressing this issue in reality. The practice took place before the Roe decision and has continued since. Burying one’s head in the sand only to ignore reality doesn’t solve anything.
The previous House briefly considered advancing a discussion which was utterly ridiculous in my opinion. Essentially any woman who suffered a preterm miscarriage would need to prove her innocence that nothing was done to harm the child. Only a guy would think of something so callous and so dumb.
If a woman delivered a living baby and that baby died shortly after birth, the mother would be guilty of murder until proven innocent. Many health insurance companies term miscarriages as a form of abortion with terminology such as spontaneous and others. To avoid the abortion stigma, some women have had still births or a living birth knowing the child would not survive outside the mother. I’m sorry, but I only view the above as tragedies and they are tragedies whether or not I’m aware. My ignorance changes nothing.
What does bother me, however, is the lack of acknowledgment to the fact that less information about the reproductive process and limiting access to contraception will result in an increase of unplanned pregnancies. Wouldn’t the increase in that statistic correlate to an increase in abortions?
Granted this source is not ideologically balanced, but I have seen similar statistics in more academic (hence longer) works on unintended pregnancies.
Likewise little concern seems to be given to the woman who may benefit from such medications in areas that have nothing to do with birth control or reproduction. It’s that basic premise of “oh you’re just a woman, you need to pay more for healthcare, you need to publicize your health issues on a public forum, and you need permission from others to do practically anything.”
With the SCOTUS decision I really see little changing. Sadly no lives are going to be saved regardless of when one believes that life begins. Religious freedom has neither been protected nor infringed. For-profit corporations can still invest in areas they choose to reap the best profits for their stockholders even if such investments seem to contradict their religious beliefs. These corporations can assert that the religious beliefs of their major stockholders are superior to those of others. US law, however, will try to uphold a freedom of religion for everyone. In doing so if some groups receive a benefit or protection under the written law, all groups will have a right to that same protection. If corporation A believes that protection violates their religious freedom while corporation B finds no discrepancy between their religious beliefs and the law, then corporation A can pass any financial burdens on to others so that equal protection is at minimum offered.
I know next to nothing about the Green family or any of the businesses in this lawsuit even though I am familiar with some of the groups who financed the challenge. I’m not even sure if I have ever walked into a Hobby Lobby store. Obviously I am not employed by the business or its affiliates and so my health insurance is subject to their beliefs. Actually my health decisions are between me and my medical professionals although family and friends often have input because I seek their opinion, and strangely enough they care for me. Still, according to the Supreme Court I will most likely pay a bit extra so that a for-profit corporation does not contradict its religious beliefs.
Like I mentioned above, I believe that to have true freedom you must sacrifice some freedom. That’s OK with me. What I find strange, however, is how some who claim to be so prolife care next to nothing about children already born. In many situations it seems that all that matters is being seen protesting and then hiding one’s eyes not to see the suffering already there.
Despite all the hoopla and anticipation of this SCOTUS decision, another law can render this decision obsolete as the base turned out to be 1993 and not the First Amendment. Once again, women are required to overcome different obstacles and are expected, I guess, to play the same game but with different rules than men like me.