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Thursday, July 3, 2014

A lesson in the Hobby Lobby case

Telegraph Editorial

The only thing that can be said for sure about the Supreme Court of the United States is that the justices surprise us from time to time.

That seems especially true of the court as constituted under Chief Justice John Roberts. It’s hard to tell from week to week whether the present court is more like that of the Warren court (that would be Chief Justice Earl, not Sen. Elizabeth) of the 1950s and ’60s that found individual constitutional protections not previously considered, or more similar to the court of Roger Taney, whose 1857 Dred Scott ruling that slaves were not citizens remains a stain on the court to this day. ...

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The only thing that can be said for sure about the Supreme Court of the United States is that the justices surprise us from time to time.

That seems especially true of the court as constituted under Chief Justice John Roberts. It’s hard to tell from week to week whether the present court is more like that of the Warren court (that would be Chief Justice Earl, not Sen. Elizabeth) of the 1950s and ’60s that found individual constitutional protections not previously considered, or more similar to the court of Roger Taney, whose 1857 Dred Scott ruling that slaves were not citizens remains a stain on the court to this day.

Democrats and civil libertarians, who rejoiced at last week’s unanimous ruling that required police to get a warrant before searching a suspect’s cell phone, were gnashing their teeth at this week’s 5-4 Hobby Lobby decision that gave individual employers with religious objections the right not to pay for their employees’ contraception under the Affordable Care Act.

What is entirely predictable is that people see the court’s rulings through the prism of their own prejudices and biases, and none of the Hobby Lobby reactions from the political world carried even a hint of surprise.

“This is not an issue of birth control, or health care, this is a matter of religious freedom,” said Andrew Hemingway, a tea party Republican running for governor. Republicans saw it as a victory for religious freedom, while many Democrats called it a massive infringement on women’s health care options.

The woman whose job Hemingway is seeking, Democratic Gov. Maggie Hassan, called the Hobby Lobby decision “disappointing,” and added: “I’m optimistic that employers will continue providing coverage for family planning services because it’s the right thing to do for workers. It will help businesses attract high-quality employees, and it will strengthen the economic security of working families.”

Hassan is right. Most employers have no powerful religious objections to providing contraception to their workers, and most will keep doing so because it’s a smart business move and allows them to attract the most talented workers. That was precisely why most employers started offering health insurance coverage in the first place, back in the middle of the last century.

The court in the Hobby Lobby case tried to balance the government’s interest in allowing women access to contraception covered by government-mandated health insurance plans against the rights of owners of closely held companies not to be unduly burdened by laws that offend their religious beliefs.

The decision, written by Justice Samuel Alito, noted that a religious exemption to the ACA had already been recognized for churches and nonprofits, and that only four of the 20 forms of contraception covered by the ACA were at issue in the Hobby Lobby case – the four that interceded with the conception process after an egg was already fertilized.

One of the standards the court considered is whether there might be a less restrictive way to achieve the government’s objective – that is, a way that does not require an employer to violate his or her religious beliefs. The court found that there were alternatives; the government could have paid for such contraceptives itself, for instance.

It was a defensible conclusion, at least before it came out that Hobby Lobby’s employee retirement system “has millions of dollars invested in funds that own the companies that make birth control methods, including Plan B, the so-called ‘morning after’ drug,” according to CNN Money.

So the owners of Hobby Lobby are not OK with buying certain types of birth control for their employees, but are buyers in companies that make those same products, when doing so will produce income for the employee pension fund.

The lesson is that even moral indignation has its limits.