Letter 2 America for July 18, 2014

Dear America,

The Hobby Lobby has succeeded in amending the Affordable Care Act (ACA) without legislative action in consequence of its victory in the Supreme Court regarding mandatory provision of birth control under health insurance policies.  The provision of the ACA that required insurers to include provision of birth control in every policy was struck down by Samuel Alito and the new conservative majority on The Court, and now, no person working for a "closely held" corporation owned by someone with purported religious convictions that oppose birth control...at least birth control through abortion, either with medication or a medical procedure...can count on her insurer covering it if she needs it.  But there was already a legal process through which an employer could opt out of contraceptive coverage, and all it required was completion of a two page form.  In such cases, the employer's payments to the insurance company would no longer be applied to the provision of contraceptives, but the insurance company still would be required to provide that coverage under the law...only for free.  But there are law suits all over the country objecting to requiring religious entities to even sign the form.  Hobby Lobby alone doesn't excuse them as it applies only to businesses, but the form was created specifically to accommodate religious organizations without the mandate of a Supreme Court decision during the national debate over the issue when the ACA was being passed, or shortly thereafter.  It was intended to obviate litigation, not to precipitate it, but apparently that wasn't enough.  What remains of the litigation in any form that opposes implementation of aspects of the ACA is obviously a form of guerilla litigation rather than a battle over principle, but that is immaterial.  The Supreme Court seems to comprise a minority that wants to see contraceptives available to all women as a function of the provision of what women need to be healthy, and contraceptives are a women's issue, not one of general application, make no mistake about it.  Condoms were never to be provided under the ACA, and as there is no biological preventative for male fertility, it's only various pills and procedures that are the target of the suits against the ACA.  But, the Supreme Court, while it is willing to consider the convoluted claims of religious rights made by rich businessmen who happen to be religious--some might say to a fault--that solicitude for the protection of rights doesn't seem to extend to half of the American population: women.  Don't women have rights too?

No doubt the argument was made during the hearings before the courts in the Hobby Lobby case, and its cogency seems unassailable.  But beyond the argument that women are being deprived of their rights, there is the fact that religious institutions and business owners are being given the right to force women to practice their religious principles, a fact that might seem nothing but a rhetorical flourish, but there is a deeper constitutional consideration as well.  The First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."  The breadth of that proscription has been the subject of a great deal of litigation over the centuries since it was written, but it literally says only that congress may not make laws about religion, by implication that means that congress may neither means create a state church or protect one church or another, but that is exactly what the Hobby Lobby decision did.  It imposed on the store's women employees...all women employees, not just those with beliefs similar to those of the owners...the tenets of the religion of the owners of the business by denying those women their right to equal protection of the law...specifically the ACA.  The ACA guarantees reproductive rights for all women, but only if they don't work for religious business owners if you take Justice Alito's point in the decision he wrote for Hobby Lobby.  And Hobby Lobby and other closely held business owners have said that such is not the case because those women don't have to work for their companies, and that is largely true, though in this economy it is not practically realistic.  However, the same goes for women who work for companies whose executives are male chauvinists, and for African-Americans whose bosses are racists.  Yet in those cases, the fact that other employment might be an option for the employee in question doesn't protect the improper imposition of objectionable, or even odious conduct and practices.  Still, there may be a way out of this on the state level.

In Connecticut, the home state of Estelle Griswold of Griswold v. Connecticut fame, one of the U.S. Senators, Richard Blumenthal, is suggesting to the Hobby Lobby abide by state law, which requires that an employee be provided with contraceptives under the ACA.  There has been a lot of growth in Connecticut since The Supreme Court ruled that the state did not have the right to deny Estelle Griswold and Planned Parenthood the right to counsel about contraception and provide it as well. So Hobby Lobby might well be back in court as the company is contemplating three new stores in Connecticut to go along with the one already extant there, and if the state law enforcement establishment pursues the matter, Hobby Lobby might well be the defendant again when it gets to court, and there might even be fines involved as provided by the ACA.  We'll see how money affects the will of Hobby Lobby to vindicate its religiosity at the expense its women employees.  After all, if Hobby Lobby doesn't want to obey Connecticut's law, there are plenty of other states they can do business in...and countries with required religions too.

Your friend,

Mike