[Editor’s Note: In light of yesterday’s controversial Supreme Court ruling that Hobby Lobby does not have to provide certain forms of birth control to employees under the Affordable Care Act, we are publishing two views on the decision. Read the other here.]
From the inception of our country, Americans have demanded certain basic rights, including freedom of religion, speech, press, assembly and petition. All of these rights are awarded in the First Amendment of the United States Constitution, which reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment passed the House and Senate in 1791 with no meaningful debate about the meaning of particular clauses, which has led to considerable disputes over their meaning throughout the nation’s history. The most recent example came yesterday with the Supreme Court decision in Burrell v. Hobby Lobby.
A year and a half ago, I wrote an op-ed piece for RELEVANT in which I articulated why I thought the Hobby Lobby case was important. Yesterday, the Supreme Court decided in favor of Hobby Lobby, a decision I enthusiastically support.
Yesterday’s ruling was a very narrow application of the Religious Freedom Restoration Act of 1993, which prevents laws from substantially burdening a person’s free exercise of religion. Of the 20 birth controls approved by the Food and Drug Administration the owners of Hobby Lobby, the Green family, objected to only four: two kinds of emergency contraceptive or “morning after” pills, and two types of intrauterine devices, or IUDs, which they believe to be not simply preventative measures against pregnancy, but abortifacients that terminate life. Hobby Lobby and by natural extension, similar corporations, will still pay for 16 other types of birth control.
Justice Ginsberg, in her dissent, argued this ruling was a setback for women, whose personal prospects for economic and social success has long been viewed as contingent on a woman’s ability to control their reproductive lives. Ginsberg opened her dissent with a quote from Sandra Day O’Conner—the first woman appointed to the high court, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
But contrary to Ginsberg’s dissent (and many others), the rights of women’s control over their reproductive lives was not the question, nor have they truly been violated. A true impingement of women’s reproductive lives would have included forcing women to work for organizations that are exempt from covering these four types of birth control or denying women the right to purchase these contraceptives on their own. Women working in these organizations still have access to 16 different types of birth control. Women still have the right to use any type of birth control they wish; they do not have the right to make someone else pay for it if doing so violates their First Amendment rights.
The task of the court was not to determine the validity of these beliefs, but whether or not the mandate placed a substantial burden on the owner’s free exercise of religion. In the majority opinion, Justice Alito said, “The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.”
In other words, even if providing coverage for these types of birth control is morally neutral in and of itself, as argued by HHS, the act itself enables an act that is not morally neutral to the Green family. And the penalty for not complying with the mandate ($1.3 million—approximately a $100 daily penalty for every employee) “imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs.”
That is what SCOTUS ruled, and hyperbolic statements regarding the downfall of women’s rights or slippery slopes argument do nothing to advance the conversation. While I definitely understand the fear that this ruling would lead to a slippery slope of allowing owners to deny coverage for aspirin or blood transfusions, that application was expressly denied in Alito’s ruling.
“This decision,” wrote Alito, “concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.”
Of course, this doesn’t stop others from bringing their own cases to the court. If these cases are brought, the task of the courts in the future will be to determine the validity of their claims and the application of this ruling. I’m not a legal expert, but I assume that these decisions will rely heavily on the principle of non-maleficence.
When considering the nature of the ruling and it’s implications, it’s important to rely on the facts and not statements made from political posturing. Thomas Jefferson once stated that “A democracy cannot be both ignorant and free.” For a democracy to truly work, in order to to avoid a fate worse than the tyranny we originally left behind in Europe, all citizens need open access to all pertinent information about circumstances and situations that arise. Propaganda, hyperbole and emotional imagery prevent, rather than promote, the free flow of information needed to evaluate decisions like the measured, narrow SCOTUS ruling on the Hobby Lobby case.
Dr. Halee Gray Scott is an author, scholar and researcher. Her research and teaching focuses on theology, spiritual formation and leadership. Her articles have appeared in Christianity Today, Real Clear Religion, Cooks and Culture, Her.Meneutics, Kyria, Gifted For Leadership and Outcomes. She blogs at www.hgscott.com.