On Sebelius v. Hobby Lobby Stores, Inc.

The issue at stake in this case, argued before the U.S. Supreme Court on March 25, 2014 (see SCOTUSblog, at: http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/), is neither the Constitutional value of the Affordable Care Act of 2010 (henceforth "ACA") nor the constitutionality of negotiated limits to the terms of the ACA in enforcement in relation to non-profit religious organizations.  This case is fundamentally about the capacity of the women's movement to enforce its agenda on reproductive freedom, through its allies in the national Democratic Party, against private employers as a condition of doing business in the U.S.  Alternately, it is about the determination of the limits to the free exercise of religion by employers relative to labor market practices.  That is to say, can an employer compel an employee to adopt a certain set of religious beliefs as a condition of employment in a for-profit enterprise?  (The manner in which I have launched this inquiry should tell you where this perspective is leading!) 
            Based on what Hobby Lobby's owners are arguing, it appears that employees should be compelled to accept a certain truncated range of birth control benefits in health insurance policies as a condition of employment in order to conform with the religious beliefs of their employers, notwithstanding federal legislative and regulatory enactments dictating that private businesses supplying employer sponsored health insurance should provide a wider range of birth control options through health insurance policies.  In other words, the agendas of the women's movement and that of religiously conservative groups regarding abortion and certain ranges of birth control procedures are coming to a head in association with the ACA, a piece of federal legislation that has induced and nurtured the ire and activism of tens of millions of Americans who objected in principle to the idea of the federal government intervening in health insurance markets per se, let alone with an agenda sponsored by the women's movement. 
            There are several points that I want to address here.  First, having grown up Catholic and practiced Roman Catholicism devoutly until I was thirty, I understand the moral/ethical motivations of religious conservatives with regard to birth control and abortion.  These concerns are irreducible, notwithstanding the best arguments of the women's movement and its theoretic supporters, to the maintenance of a gendered political hierarchy and control by the state over women's bodies and, specifically, their reproductive capacities.  They involve more basic conceptions regarding the definition of human life, souls/spirits, and Divine Creativity that, properly speaking, cannot be objectively rejected by the scientific/medical community (because, responding as a rather strictly materialist Marxist thinker, they involve matters that can never be explained in relation to the universe of materiality!).  Rather, they are rightly the subject of political debate, democratic deliberation, and consensus building, notwithstanding the best arguments of the women's movement that the status of women's bodies and, hence, the freedom of women to exercise sexuality should be above politics (in my view, nothing is above democracy). 
             The authors of the ACA and its administrators within the Obama administration, from Health and Human Services Secretary Sebelius down through her administrative bureau chiefs and their subordinates, were unwise to cave into the demands of the women's movement to attach reproductive health objectives to a piece of legislation intended to achieve a broader fix for rising costs in the provision of health care in the U.S.  In many cases, religious conservatives, especially within Roman Catholicism, where the current Pontiff has shown an extraordinary commitment to safeguarding the interests of the poor in securing basic services, like health care, as a right, might have defended the broader objectives of the ACA if it did not simultaneously enforce reproductive rights that were inimical to religious values.  In this manner, I do not think that a broad based federal health insurance reform was the appropriate place for the women's movement to stake its ground. 
             Approaching from the opposite direction, we need to understand the broader implications of extending First Amendment protections on freedom of religion from state interference to labor markets for enterprises operating on a strictly for profit basis.  For example, a ruling in favor of Hobby Lobby would seem consistent with notion that  Muslim enterpreneurial employers could choose to enforce prayers toward Mecca on non-Muslim employees at requisite hours of the day as a condition of employment.  Likewise, if a particular employer deemed prohibitions on child labor, enforced through the federal Fair Labor Standards Act of 1937, inimical to their religious values, would they be excepted and, thus, enabled to employ large numbers of children in working conditions that we have, at least since the 1930s, deemed ourselves fit to outlaw as a matter of public consensus on the sanctity of childhood relative to labor markets?  Fundamentally, I believe that the stakes in this case involve our collective willingness to acknowledge that legislatively expressed public policy priorities may have to trump matters of religious liberty, at least to the extent that they involve social practices outside of the household or church.
              Emphatically, there is a lot about the ACA that I don't like.  I would greatly prefer legislation that would provide universal health insurance coverage without either individual mandates or reliance on employer sponsored health insurance (i.e. I support single-payer health insurance through the tax code as the most effective means of controlling costs and maintaining the health and life expectancy of the broader polity!).  Moreover, I think that there were other avenues that the women's movement could have taken to reinforce a commitment to reproductive freedom for women.  That said, I would find a decision in Hobby Lobby's favor to be pernicious with regard to religious liberties of employees (in reference to the First Amendment protection against establishment of religion).  Further, in regard to information on the relative effectiveness of particular birth control techniques and their costs, I support the enforcement of the ACA in its current form against employers.  If the owners of Hobby Lobby want to avoid paying for procedures they find objectionable, then the ACA affords them a procedure for doing so (paying a nominal corporate tax penalty that would, probably, enable them to earn their share holders a higher profit rate relative to what they would have earned if they had to supply health insurance to their employees in the first place!)
                I do not know how the Court will rule.  I hope, however, that it will defer to the intentions of the lawgiver and understand that the prerogative of developing federal policy on health insurance provision in conformity with the reproductive needs of women advances a necessary and proper extension to the exercise of Congress' power to regulate interstate commerce in order to maintain capable, healthy, and productive local work forces.  Minimally, I hope that the Court will not extend religious liberty into contexts where employers will be enabled to enforce their religious views against employees who do not share their views in enterprises operating on a strictly for-profit basis.