Hobby Lobby, Contraception, & the Supreme Court Ruling

The Roberts CourtAs expected, the last case ruled on before the Supreme Court of the United States adjourned until October was the Hobby Lobby/Conestoga case. For those unaware, this case is based on the Affordable Care Act’s contraception mandate, classifying contraceptives as preventive healthcare required under all insurance plans without a co-pay. Hobby Lobby and Conestoga Wood both objected to this, saying that covering some forms of birth control, like the IUD/IUS or Plan B, violated their religious beliefs by requiring them to fund abortive medications.1

Unfortunately, SCOTUS ruled for Hobby Lobby/Conestoga, agreeing that the contraception mandate of the Affordable Care Act violates the Religious Freedom Restoration Act.

Now, before we get into the particulars,2 let’s go over the generals:

  • NO, SCOTUS did not overturn the contraception mandate.
  • NO, SCOTUS did not rule companies do not have to provide contraception to employees.

This is a limited ruling that does not affect publicly-held corporations, or privately or closely-held corporations that do not also have sincere religious beliefs.

So what did happen? SCOTUS ruled that closely-held corporations owned by people with sincere religious beliefs do not have to provide contraception coverage that violates those sincerely-held religious beliefs.

It’s important to note that this is a very, very narrow ruling. In the majority rule, Justice Alito noted that this particular ruling would not give companies room to discriminate; for example, a closely-held corporation owned by folks whose religion finds gay people an abomination would not be allowed to freely discriminate against gay folks. This ruling does not overturn federal protections for suspect or quasi-suspect classes.

…your eyes just glazed over, didn’t they? At the end of this post, you’ll find a treatise on legal vocabulary that might help the above make sense. For now, let me put it into English for you: highly religious families that own large businesses that employ lots of people but don’t share that stock love around are allowed to deny female employees certain types of contraception based on scientifically incorrect notions of what an abortion is, but that’s all they’re allowed to do.

In line with the Citizen’s United ruling that says corporations (are people too) have free speech, this ruling says that a small, small group of companies in the United States are protected under the RFRA, because they have a religion.

In the run-up to this decision, I’ve quipped (repeatedly) that I’ve never seen a corporation in a church before. SCOTUS would reply: when that company is held by five or fewer related family members with shared sincere religious beliefs, if you’ve gone to church with that family, you’ve seen that corporation in church.

In other words, there is no firewall between the religious beliefs of a family and the company that the family runs. (This also would apply to a small group of people who share a sincere religious belief but are not related.)

The reason for this is that the ACA mandate fails the Sherbert Test. Justice Kennedy said that he believed that the option for religiously-affiliated organizations, such as Catholic hospitals, to opt-out of contraception coverage meant that the government could not prove that requiring Hobby Lobby and Conestoga Wood (or other closely-held corporations with sincere religious beliefs) to include contraception coverage in the health policies they contribute to was the least restrictive or burdensome option. In the case of the religiously-affiliated non-profit organizations, women are able to receive contraceptive coverage through separate health policies provided by the federal government at no charge; Justice Kennedy clearly feels that this will be extended to women who work at closely-held corporations with sincere religious beliefs against some contraceptives.

Of course, as SCOTUSblog noted, there are a couple of issues here. The bigger one is whether or not the Department of Health and Human Services has the authority to extend the non-profit contraception exemption to closely-held corporations; I expect we’ll see the Obama Administration clarify this quickly (and most people seem to think that HHS has the authority to do this, including SCOTUS).

The smaller issue is an interesting one. There are some non-profit groups that have argued that even signing a certificate that says they object to providing contraception coverage for their female employees is a violation of the RFRA. Today’s Hobby Lobby/Conestoga ruling seems to imply that SCOTUS does not find the process of certifying beliefs an undue burden under RFRA, which could effectively shut down some 20-odd cases around the country.3

So in sum, closely-held corporations can express religion and are protected under RFRA as long as it’s a sincerely-held religious belief, but the expression of their religious beliefs does not go so far as to allow discrimination; women employed by these companies should still be able to receive free contraceptive coverage from HHS, like women who work for religious non-profits do; and signing a piece of paper to indicate that your company’s sincerely held religious beliefs is probably not going to be viewed as an undue burden by SCOTUS.

It’s an interesting ruling, and one that I suspect isn’t going to make too many people happy, even while people will incorrectly make absurd statements on what the ruling means.

My personal take is a bit more esoteric: I actually think this Supreme Court is laying the groundwork for a robust federalized healthcare for everyone; clearly, they have established that it is appropriate for the government to offer and require insurance. This shifts another bit of the burden away from companies and towards the federal government, and I suspect that these tiny shifts are what it’s going to take to end up in a system of basic healthcare services provided by the government, with the option for additional insurance offered by companies as hiring incentives or purchased on the market for those interested. The question then becomes: is this intentional by Justice Alito and the other conservatives judges, or is this just happy coincidence as they strive to protect the rights of corporations to be people?

 


Let’s talk about vocabulary, everyone’s favourite subject! In specific, let’s get some definitions for SCOTUS vocabulary and legal language out and down on paper, so that we’re all on the same page.4

Closely-held corporation
A closely-held corporation is a private company owned, directly or indirectly, by a small group of people; the majority of the shares are held by five or fewer people.5 These are not publicly traded companies; if a shareholder wants to sell, it must be to an existing shareholder.

Religious Freedom Restoration Act
The RFRA is a 1993 law, signed by Bill Clinton, that prevents laws that substantially burden a person’s free exercise of religion. RFRA applies to the federal government, not state governments. As ACA is also a federal mandate, it is subject to scrutiny under RFRA. The law reinstates the Sherbert Test to see if an individual’s right to free expression of religion has been violated by the government, and mandates that any challenge involving the Free Exercise Clause of the First Amendment be subject to strict scrutiny.

Sherbert Test
This is the test used to determine whether or not the government has violated free expression of religion. For an individual, (and remember, corporations are people, too!), the court must determine:

  • whether the person has a claim involving a sincere religious belief, and
  • whether the government action is a substantial burden on the person’s ability to act on that belief.

If these two elements can be established, the government must then prove that it:

  • is acting in furtherance of a “compelling state interest,” and
  • it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

Strict Scrutiny
This is the most stringent standard of judicial review available, and is generally invoked in situations that either involve suspect classifications or constitutional challenges.

Suspect and Quasi-Suspect Classification
A suspect classification is any group of people that meet criteria suggesting they have been or will be the subject of discrimination. This criteria includes a history of discrimination, hostility, prejudice, and stigma against the group in question, which can be based on stereotypes; immutable or highly visible traits; little to no political power; their distinguishing features do not render the group unable to meaningfully contribute to society.

The Supreme Court recognizes race, national origin, religion and alienage (not being citizen of the United States) as suspect classes. Gender, parentage (legitimacy), and sexual orientation are recognized as quasi-suspect classes.

Sincere religious beliefs
First, let’s be clear: a religious belief does not necessarily mean a belief in God(s). In Welsh v. United State, SCOTUS ruled that “the definition of “religion” is not dependent on a belief in a “Supreme Being.” A person’s beliefs may be deemed “religious beliefs” if those beliefs occupy in the life of that individual a place parallel to that of God in traditional religions.”6

In Brown v. Pena, SCOTUS cited three things to determine whether or not a belief is a religious belief:

  1. whether the belief is based on a theory of “man’s nature or his place in the Universe;”
  2. which is not merely a personal preference but has an institutional quality about it; and
  3. which is sincere.

Unique moral preferences thus are not also religious beliefs. (So, for example, being a vegan without also being a member of a religious order whose institutional and accepted religious texts required a vegan diet, would not be a religious belief.)

And finally, how do you determine if said religious belief is sincere? There are multiple cases that discuss what a sincere belief is7 and determined that elements of sincerity for the purpose of religious belief includes following the rules and restrictions of the religion in question, attendance to appropriate worship services, acknowledgment of religious holidays, association with other people of the same religion, and so on.

  1. We’re just going to sigh and ignore proper science right now, okay? Because otherwise we’re going to go nowhere but to the nearest hard surface. With our heads. []
  2. I am not a lawyer; let’s just get that out of the way up front. []
  3. Emily Bazelon has more about these cases over at Slate. []
  4. Remember, I am not a lawyer. []
  5. So sayeth the IRS. []
  6. All referenced court cases in this section are from the document “Selected Cases on Religious Discrimination” prepared by the Office of Legal Counsel for the US EEOC. []
  7. EEOC. v. Ilona of Hungary, Inc; EEOC v. Union Independiete De La Autoridad De Acueductos y Alcantarillados De Puerto Rico; Hussein v. Waldorf-Astoria; Bailey v. Associated Press; etc. []

In Which An Editor Obnoxiously Brags About Her Author

I spent much of the fall grumbling – mostly good-naturedly – about editing a dissertation on the dual-use dilemma in the life sciences. I fell into editing the project rather late,1 which led to some memorable crankiness on my part (I actually sent back one chapter with “no” and “rewrite”), and sleep turned into a precious commodity for a while.

Overall, though, I’m incredibly proud of the small part I had in the project, and extremely proud of the author in general. You can’t read the dis (yet), but you can see a little bit of Nick’s writing over on the Scientific American guest blog, today, where he looks at the proposed DHHS policy on gain-of-function research in the life sciences:

Yet even if we do overcome the hurdle of identifying what is beneficial, and what manifestly dangerous, the proposed actions given by the framework are somewhat alarming. The framework gives the option to transfer dangerous gain-of-function research to agencies that conduct classified research, such as the Department of Defence or the Department of Homeland Security.

Yet classified government research in the life sciences doesn’t have a great track record of being in the public interest: the Defence Intelligence Agency’s attempts to make genetically modified anthrax, the Defence Threat Reduction Agency’s milling weapons-grade anthrax in secret, or the CIA’s creation of Soviet-style “bomblets” that are used to disperse biological agents (in the name, so claimed, of assessing their effectiveness in use against the US), are all example of deeply troubling classified life sciences research purported to be in the public interest.

The possibility of taking research we’ve already ascertained is problematic, and giving it to an agency with a history of misuse of research, is frightening. We should question this new policy to the extent that it leaves open this option. If research is risky to public health, or doesn’t show merit regarding actually emerging infectious diseases, why open the way for that research to be done in secret?

You should go read it because you’re excited about the idea of a new, non-American voice in bioethics, or because you’re interested in the life sciences and dual-use research, or because you want an idea of what I was working on in the fall, or because you see the issues here for corruption, or just because I said so and you know I have fantastic taste.2 Whatever the reason, go read.

  1. Note, fellow editors: don’t take on a large project like that with a two-month window, especially not when you have two academic conferences of your own to prepare for and attend, plus your day job. []
  2. I do. Bias aside. And if you haven’t picked up on the bias yet, you’re just a wee bit slow now, eh? And I don’t know what this lampshade is doing on my head. []

Yet Another Rape Apologist in a Position of Power

It’s been a banner year for rape in the media, and apparently December just felt left out. Joining the likes of:

  • Todd “if it’s a legitimate rape, the female body has ways to shut that whole thing down” Akin (outgoing Rep, R-Missouri);1
  • Paul “forcible rape” Ryan (2012 GOP VP candidate);2
  • Chuck “I would hope that when a woman goes into a physician, with a rape issue, that that physician will indeed ask her about perhaps her marriage, was this pregnancy caused by normal relations in a marriage, or was it truly caused by rape” Winder (Senator, R-Idado);3
  • Whoopi “I know it wasn’t rape-rape” Golberg;4
  • Richard “I think that even with life begins in the horrible situation of rape, that it is something that God intended to happen” Mourdock (Senate candidate, R-Indiana);5
  • Tom, I’ll just clarify to reporters that having a baby out of wedlock is a situation similar to becoming pregnant from rape, Smith (Senate candidate, R-PA);6
  • Steve, the 11-year-old gang rape victim was “like the spider and the fly. Wasn’t she saying ‘come in to my parolor, said the spider to the fly,” Taylor, arguing the girl was “the reason that 20 teenagers and adult men raped a child on videotape;7
  • Rogar “some girls rape so easy” Rivard (Rep, R-Wisconsin);8

is Orange County Superior Court judge Derek Johnson, who said that the following litany of amazing things when refusing a heavier sentence for a man convicted of rape by a jury of his peers:

I spent my last year and a half in the D.A.’s office in the sexual assault unit. I know something about sexual assault. I’ve seen women who have been ravaged and savaged whose vagina was shredded by the rape. I’m not a gynecologist, but I can tell you something: If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case. That tells me that the victim in this case, although she wasn’t necessarily willing, she didn’t put up a fight. And to treat this case like the rape cases that we all hear about is an insult to victims of rape. I think it’s an insult. I think it trivializes rape.9

Of course, in some ways it’s unfair to lump Johnson in with the above quotes, because his ruling actually happened in 2008. That’s okay, though – there’s an awful lot of horrible that’s been spouted off in the past, too, and he’s just clearly gravitating towards his own:

  • Stephen “rape causes women to ‘secrete a certain secretion’” Freind (1988 Rep, R-PA);10
  • Henry “the facts show that people who are raped–who are truly raped–the juices don’t flow, the body functions don’t work and they don’t get pregnant. Medical authorities agree this is a rarity, if ever” Aldridge (1995 Rep, R-NC);11
  • Clayton “if ‘[rape] is inevitable, just relax and enjoy it” Williams (1990 Texas Republican gubernatorial nominee);12
  • James Leon “concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami” Holms (Federal Judge, 1997);13
  • John C. Willke, a physician who was once president of the National Right to Life Committee, whose statement is astonishing and bears repeating in full:

    Finally, factor in what is is certainly one of the most important reasons why a rape victim rarely gets pregnant, and that’s physical trauma. Every woman is aware that stress and emotional factors can alter her menstrual cycle. To get and stay pregnant a woman’s body must produce a very sophisticated mix of hormones. Hormone production is controlled by a part of the brain that is easily influenced by emotions. There’s no greater emotional trauma that can be experienced by a woman than an assault rape. This can radically upset her possibility of ovulation, fertilization, implantation and even nurturing of a pregnancy. So what further percentage reduction in pregnancy will this cause? No one knows, but this factor certainly cuts this last figure by at least 50 percent and probably more.14

People being horrible about rape, since forever.

With thanks to Katie J.M. Baker for her Jezebel post Fuck You, Rape Culture, which served as a comprehensive list of spoken justifications for rape that made the news this year.

  1. It’s Not Shocking That Republican Senate Nominee Thinks Women Can’t Get Pregnant From ‘Legitimate Rape’ []
  2. The Truth About “Redefining” Rape []
  3. Chuck Winder, Idaho Lawmaker, Suggests Women Use Rape As Excuse For Abortions []
  4. Whoopi On Roman Polanski: It Wasn’t ‘Rape-Rape’ []
  5. Richard Mourdock: Rape, pregnancy and God’s plan []
  6. Having a Baby Out of Wedlock is Kind of Like Getting Pregnant from Rape, Says Senate Candidate []
  7. Lawyer likens gang-rape victim to a spider luring men to web []
  8. Rep. Roger Rivard criticized for ‘some girls rape easy’ remark []
  9. State of California, Commission on Judicial Performance []
  10. Freind’s Rape-pregnancy Theory Refuted []
  11. Lawmaker Says Rape Can’t Cause Pregnancy []
  12. Texas Candidate’s Comment About Rape Causes a Furor []
  13. In Judicial Twist, Republicans Seen Stalling Bush Pick []
  14. Rape Pregnancies Are Rare []

Is It Moral for Lefties to Vote for Obama What?

Over at The Atlantic yesterday, Conor Friedersdorf explained why he refuses to vote for Barack Obama this election season. His argument boils down to Obama having a dismal human rights record:

Obama has done things that, while not comparable to a historic evil like chattel slavery, go far beyond my moral comfort zone. … Obama terrorizes innocent Pakistanis on an almost daily basis. The drone war he is waging in North Waziristan isn’t “precise” or “surgical” as he would have Americans believe. It kills hundreds of innocents, including children. And for thousands of more innocents who live in the targeted communities, the drone war makes their lives into a nightmare worthy of dystopian novels.

This, I do not disagree with. Obama has done a lot of things that make me uncomfortable to flat out unhappy. I don’t agree with many of his policy decisions – and frankly, I also don’t expect to. While it would be nice if I was Queen of the World, realistically, that’s never going to happen (and equally realistically, we should all be happy about that). Obama has been a disaster on several issues of international human rights and morality – but taking a look at their positions, it’s not clear to me that Mitt Romney would be any better. Friedersdorf, however, thinks that the moral thing to do would be to vote for Gary Johnson, even though he won’t win.

No. In fact, I’d say that Friedersdorf’s argument clearly shows why it would be immoral for someone to vote for anyone other than Obama – at least, if someone can manage to remove themselves from a biased white male privilege position long enough to stop navel-gazing outward and take a look at our home front for a minute. Friedersdorf says

I don’t see how anyone who confronts Obama’s record with clear eyes can enthusiastically support him. I do understand how they might concluded that he is the lesser of two evils, and back him reluctantly, but I’d have thought more people on the left would regard a sustained assault on civil liberties and the ongoing, needless killing of innocent kids as deal-breakers.

Really? He doesn’t see how a woman can enthusiastically support the person who has created a program of healthcare equality? Friedersdorf can’t understand how a woman may support someone who has been trying to get the Lilly Ledbetter Fair Pay Act passed? Or how a woman might feel more kindly inclined towards someone who is strongly pro-choice and advocates for and supports a woman’s right to control her own reproductive decisions?

There are more to civil liberties than those overseas. There are the ones right here at home, and allowing your outrage over foreign issues to cloud the domestic issues is something that you can have if you are holding that invisible privilege knapsack. But charging that I am somehow acting immorally because I am advocating for, campaigning for, and voting for Obama? That’s the kind of position you can take if your rights and your abilities to equality aren’t being threatened on the home front – and that, more than anything else, is a clear sign of the benefit of privilege of gender and race.

I am not, of course, saying that Obama should be left off the hook for his dismal foreign policy record. It is bad, and the human rights issues – held over from previous administrations or otherwise – need to be dealt with, and swiftly. Drone strikes need to end, the military needs to pull back from where it is not wanted or recognized by the local populations, and we need a serious re-evaluation of our entire interaction with the Middle East.

But that doesn’t mean someone should charge that supporting Obama is an immoral act and that moral voters should throw away their vote in protest, giving the chance for a split vote to allow Romney in to office. Not seeing the threat Romney offers – from his hawkish positions on international policy (really, you think he’s going to be better than Obama) to his attacks on women, minorities, and the middle class (the real middle class, not his idea of middle class) – is something you can do if you’re not in the group he’s targeting.

Yes, I realize that Friedersdorf laid out his argument on the immorality of voting for Obama with philosophical language, falling back on various traditions to justify his argument. I could do that; I know my Kant, my Mill. I could loop in virtue ethics.1 The thing is, in this case, I think utilizing that specialized language and thinking – when talking to the general public – is a cop-out. It’s an attempt to use education to beat people over the head to get them to agree because oh, that person clearly knows what they’re talking about, and no. I know that trick, and this is too important for that.

So don’t listen to people who want to argue philosophical positions with you2 or are trying to appeal to their own authority to guilt you in to their position. Don’t look at the people making emotional appeals. Instead, look at what is genuinely important to you. What are your value issues? What is important to you? If you self-identify as liberal, then you’re concerned about social justice, healthcare, women’s rights, GLBTQ rights, equal pay, access to education, STEM advancement; you support science and evidence-based education; and yes, you are concerned about justice and international policy and human rights.

Take a look at both candidates and look at the entire picture. Yes, voting is often a lesser-of-two-evils prospect, but in this case, if you’re going to fall back somewhere, fall back on the needs of the many, and remember the many that live around you as much as you remember the many worldwide.

  1. Yes, Nick, I’d even fall on my sword and argue the point with Foot. Shush. The right tool for the problem. []
  2. Unless you’re in a philosophy department or otherwise a masochist, in which case please come back, I still need to argue Rawls with someone. []

Will Glitter Change the World?

One of the longer-running arguments my ex-husband and I had was whether or not change comes from someone working within the system, or from outside the system. I always envisioned the illustration of the argument being one of whether or not it’s better to work from inside a fortified city to open the gates via persuasion and education, or if trying to use grappling hooks and rams to force the gates open was the better – more successful – option. I suspect the bias in the envisioning clues you in to which side I (often passionately) argued.

Reading the news this afternoon made me think of that, again, as I read that a GLBTQ activist glitterbombed Michelle Bachmann this weekend. Gingrich and Pawlenty have also been glitterbombed in recent weeks. In all cases, the activists were apparently trying to draw attention to the GOP candidates stance on GLBTQ rights, and in particular the civil right to marriage.

Which leads me to wonder: is there anyone out there who doesn’t know where these people stand on GLBTQ rights?

It’s a rhetorical question, but I’m going to answer it anyways.

Bachmann, Pawlenty, and Gingrich (just to focus on the GOP potentiates who have been glitterbombed) have all been extremely outspoken in their lack of support for GLBTQ rights. They are claiming to be social conservatives who are basing their campaign runs on two major tentpoles of social conservatism: denying GLBTQ couples basic civil rights, including the right to marry, and denying women the right of choice over their own bodies. Their positions are known, in part because they stand on the metaphorical street corner with a bullhorn, shouting as loudly as they can.

So if the activism is not education – and it’s not – then what is it? An attempt for media attention? Trying to humiliate the candidate by covering them in glitter? A misguided attempt to sway other people?

Well, if it’s a strategy to bring media attention to the glitterbombee, it worked. But is this the case that any media coverage is good media coverage? Not really, and that ties in to the other two questions. All media coverage of a candidate being glitterbombed will do is reinforce beliefs on either side of the debate. People who are anti-gay marriage aren’t going to find being covered in glitter humiliating – glitter, believe it or not, has a long and storied life well beyond gay clubs, starting with finger paints and toddlers. These candidates all have kids; they probably all know foolproof ways of rapid deglittering. And covering candidates in glitter is not going to sway voters – it’s going to reinforce positions. Those who are anti-gay will see disrespect, noise, and more proof that “these people are not civilized.” Those who are in favour of civil rights will continue to be in favour of civil rights, and perhaps moderately amused; that’s preaching to the converted, though.

The thing that got me, though, was realizing that these activists – many of them, anyhow – do seem to think that they are making a point and swaying positions. It’s a clash of civilizations beyond what Huntington imagined; The activists seem to see this as an extension of the 80s rallying cry of “we’re here and we’re queer; get used of it.” But Bachmann and her ilk know that gay people exist, and believe it’s a mental disorder that requires curing. They know gay folks are out there, just like they know schizophrenics are out there, and in that particular fundangelical worldview, both are diseases that require treatment and medication to cure. Throwing glitter on someone is not likely to change the impression that being gay is a mental illness that requires treatment.