The Hobby Lobby case that came before the Supreme Court this week is a tangle of issues but let’s boil it down to two issues for now: Who is bringing this case before the court? And second, what is the beef? First, Hobby Lobby is bringing the case and Hobby Lobby is a corporation. David and Barbara Green and their three children own Hobby Lobby, but they are not Hobby Lobby, nor are they a corporation. Hobby Lobby is a corporation, a for-profit corporation. It does not have a soul or a mind. It will not go to heaven or hell. It is not a person. It does not have religious beliefs. In many ways, corporations are treated like people – witness the Citizens United case that equated money with speech and said corporations had a right to free speech and so could spend money, lots of money, on campaign ads. But finally, when it comes to religion, corporations are not people. They’re legal entities, fictions created by contracts. The Hobby Lobby case is in some sense about ascribing religious beliefs to Hobby Lobby. But how do we determine Hobby Lobby’s religious beliefs? By the religious beliefs of the Greens? All five of them? What if one leaves the church? By the beliefs of its founder? Even after his death? By the beliefs of a majority of its corporate board? Of a majority of its employees? By how much of its business is dedicated to religion? The Constitution allows for the establishment and free exercise of religion. It does not set up a system for the government to assess the depth of a person’s religion or, more to the point, to ascribe religion to a legal entity such as a for-profit corporation.
But even if Hobby Lobby doesn’t have religious beliefs, it does employ people and as their employer, it is not required to offer those employees health insurance. It could choose not to offer health insurance and expect its employees to purchase insurance on their own. To be competitive, it might have to pay more in wages if it didn’t offer health benefits, but that is its choice. If it chooses to provide health insurance rather than wages, it gets a tax benefit. This is a result of our country’s historical approach to health care. We haven’t created a socialized system; we’ve created and encouraged through such tax breaks a private, employer-based health insurance system. I don’t like it and don’t think it’s either efficient or fair, but it’s what we have. In our present system, if Hobby Lobby chooses to offer health insurance (and get the tax benefit), it has to offer a basic package of health insurance that is regulated. It can’t just offer any old, cherry-picked, knockoff insurance of its own creation. It can’t offer, for instance, health insurance that doesn’t cover prostate exams, for instance, nor can it offer health insurance that doesn’t cover Pap smears. An individual employee can choose not to have a prostate exam or a Pap smear — that’s up to her and her doctor, but an employer cannot offer health insurance that doesn’t provide prostate exams or Pap smears. Or contraception. What constitutes basic health care has changed as medical science advances. Basic did not used to include antibiotics or x-rays. Now it does. Government regulation tries to keep up with these changes. Right now, if Hobby Lobby is going to provide health insurance, that health insurance is regulated. It has to include prostate exams, Pap smears, and, according to the Affordable Care Act, access to contraception (though not abortion). The Affordable Care Act grants the power to make these determinations to the Department of Health and Human Services and the FDA, and those agencies have determined that contraception includes condoms, birth control pills, IUDs, and “morning after” pills, including Plan B and Ella (but not RU-486 or abortion). In its complaint Hobby Lobby acknowledges that until 2012, when it considered filing this suit, the health insurance plan it offered covered Plan B and Ella (though not IUDs). The burden of this coverage was apparently so insignificant that Hobby Lobby (and its Christian owners, the Greens) either did not notice it or decided to live with it. Then came Obamacare, and Hobby Lobby decided to file this case. Is it cynical to wonder if the decision was really based on religious convictions, and not political ones? // Ned Stuckey-French
