The Supreme Court's decision yesterday in the Hobby Lobby case has been met with both jubilation and condemnation. The irony is that the decision itself is really not that remarkable. The left complains that the decision effectively ends a "requirement" that employers provide contraception to their female workers. The right says this is a massive repudiation of Obamacare and a vindication for Christian Conservatives. It is neither.
In point of fact, the decision provides a very narrow exception to the individual mandate under Obamacare. If you are a smallish, family run corporation with verifiable, deeply held religious beliefs, you may withhold abortive medicine from your workers. The decision is naturally limited to its facts and is far from a total destruction of Obamacare or the individual mandate.
The left has, of course, failed to frame the issue in an accurate way. This is not about women. Hobby Lobby's abortive contraception policy applied to male workers and their families as well as women and their families. The alternative would not have been "forcing" Hobby Lobby to cover abortions. Hobby Lobby, like every other company in the country, has a right to decline to provide any coverage or benefits to employees. Employee health and welfare programs are voluntary, even under Obamacare. While it is true that Hobby Lobby would have had to pay a penalty for opting out of coverage, any employer will tell you that, in fact, the fine is far less expensive than providing even basic coverage for your workers. Hobby Lobby was never "required" to provide contraception or any other benefit to its employees and would most likely have just ended its employee health and welfare programs if it had lost the case.
So would every other religious organization. It is difficult for some people to understand, but deeply held religious beliefs are not likely to be compromised. If there is an alternative, even a more expensive one, the Hobby Lobbys of the world will take it. Obamacare provides such an alternative.
Moreover, courts have to be cognizant of the real world impact their decisions will have on the society as a whole. Decisions that cause a mass revolt from a majority or even a large minority of Americans are rarely justified. Most court decisions are limited to just the parties involved. While their impact may be far reaching, there are so many decisions issued on a daily basis that their relative impact is reduced. On the other hand, a decision from the Supreme Court that effectively requires a large minority of Americans to compromise their deeply held religious beliefs could end up being unenforceable or, at the very least, guarantee that the legislation leading to the decision is more closely scrutinized.
Many on the left have argued that this decision is a slippery slope. "What if your religious beliefs are that women should not work," they ask for example. The conflict of fundamental rights always leads to the most difficult decisions from the Supreme Court - but this is not one of those cases. In the example cited by the left above, the right of women to work is a fundamental right protected by the Fourteenth Amendment. The belief some organization might have that women should not work is protected by the First Amendment. When those rights conflict, the Court must make difficult value judgments, evaluating the impact on society and the relative sincerity of the beliefs. Hobby Lobby is not such a case.
There is no Constitutional right to receive abortive medicine at the expense of your employer. There is no Constitutional right to receive medicine of any kind at the expense of your employer. There is, however, a Constitutional right to refuse to provide abortive medicine if it violates your religious beliefs. One is a protected right, the other is not.
I suspect this is not the last time the Supreme Court will have to decide whether to expand or limit the effect Obamacare has on business. This conflict, however, between an actual right and a perceived right was rightly decided.
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