The Supreme Court ruling on Burwell, Health and Human Services vs. Hobby Lobby has sparked an ideological back-and-forth that could rival a World Cup game in its intensity. The decision is a veritable powder-keg of issues: sexuality, religion, health, worker’s rights, gender discrimination, personal freedom, corporate personhood, and governmental authority. Very quickly, two clearly-defined ideological camps emerged: those who claimed they supported women’s right to control their bodies, and those who trumpeted the importance of freedom of religion. This conflict has increasingly been represented shorthand as “women’s rights vs. religion.”
To those of us with a deep investment in both women’s lives and religion, this is disturbing. It is also wildly inaccurate, and obscures some of the very serious and complex scientific, ethical, and religious issues raised by the Hobby Lobby ruling. In the days since the verdict, the case has been explored from a variety of angles. Few of them, however, go beyond the established ideological paradigm to consider fully the religious and ethical implications of the ruling.
It is far from clear that Hobby Lobby is a triumphant win for religious freedom. In reality, it sets a dangerous precedent for the treatment of all employees who do not share their employer’s faith. Large numbers of religious people and organizations oppose the Hobby Lobby decision. One particularly thought-provoking article suggests that the verdict represents only “a victory for one kind of religion, specifically the (usually conservative) faith of those privileged enough to own and operate massive corporations.” Diane Moore of Harvard Divinity School notes that “To the extent that this ruling functions to subject employees of these companies to restrictions on their liberties (e.g., access to the full range of health services legally available to others), it supports an interpretation of religious freedom that in many incidences will serve to limit the freedoms (including religious freedoms) of others.” The court essentially privileges one set of religious beliefs over others.
This is not only a question of the state legislating our ethical lives—here the faiths of others directly interfere with an individual’s access to guaranteed resources.
Many religions understand the debate over abortion and contraception in ways radically different from the Christianity of the owners of Hobby Lobby. Many forms of Buddhism, Hinduism, and Islam allow for certain methods of birth control. An employee may, for example, belong to a faith that does not view the destruction of a fertilized embryo as an abortion but does, however, condemn abortion after the embryo has implanted in the uterus. With her religious beliefs in mind, she may select a copper IUD (one of the most effective methods of birth control, as well as one of the most expensive). If she is an employee of Hobby Lobby, however, she will find it difficult to access this device, since is one of those contested in the Hobby Lobby case.
The Supreme Court decision therefore forces the employee to forgo what she sees as an ethical choice, and pushes her closer to a confrontation with what is, to her, morally reprehensible. What is particularly striking here is that we find instead the explicitly conservative Christian beliefs of the employers overriding the religious beliefs of the employee. This is not only a question of the state legislating our ethical lives—here the faiths of others directly interfere with an individual’s access to guaranteed resources.
An employee’s free access to contraceptives is not a grace bestowed by the whim of her employer, but rather by federal legislation. As Justice Ginsberg noted in her dissent, the Affordable Care Act (ACA) does not require that companies “purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans.” In the court proceedings, HHS echoed this sentiment by arguing that “the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage and contraceptive method she uses.” In short, while the owners of Hobby Lobby may see their religious values as under attack, the tenuous link between their own choices and the delivery of healthcare suggests that their views might more closely resemble an active transposition of their own religious ethics onto the equally religious decisions of their employees.
The majority opinion of the Supreme Court states, “The belief of the Hahns and the Greens implicates a difficult and important question of religious and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act which is innocent in itself but has the effect of enabling or facilitating the commission of an immoral act by another.” The Court shies away from commenting explicitly on this ethical dilemma, but their ruling is a clear enough statement.
Moreover, while the Hobby Lobby decision sets one set of religious beliefs over another, it also neglects to fully follow the reasoning of ethical/religious accountability it implies. If one does accept the premise that the ACA is a violation of the religious right of an individual to own a company which pays for health coverage which pays for birth control which may or may not be used by the employee to obtain a medicine considered immoral… how much farther might we reasonably assume that an individual’s moral liability extends?
Well over seventy companies are using the Hobby Lobby precedent to seek exemption from the contraception mandate.
Say, for instance, that a Hobby Lobby employee seeks a prescription for Plan B, but finds—since her employer no longer covers it—that the copay is far more than she can afford. She therefore risks pregnancy. A few weeks later, perhaps, she discovers to her horror that she is pregnant; she feels that her life circumstances require her to abort the pregnancy. If the owners of Hobby Lobby consider themselves morally liable when their employees take emergency contraception, are they also then morally liable for this abortion, in some small but significant way? At what point does one’s ethical stance shift from “I wish to reduce evil and increase good” to a more laissez faire “I wish to keep my hands clean”?
One might argue that the result is the same: both Plan B and medical abortions destroy the fetus, one just does it a bit later than the other. But having the abortion is qualitatively different from taking Plan B; it results in significantly more physical intervention, discomfort, and psychological distress for the woman. Her employers are not off the moral hook because they did not provide the coverage. Choosing not to act is still an active moral decision.
The precedent set by Hobby Lobby is still vague. In its ruling on the case, the majority opinion noted that “it ‘seems unlikely’ that large corporations ‘will often assert RFRA [Religious Freedom Restoration Act] claims.’” This has quickly been proven false: well over seventy companies are using the Hobby Lobby precedent to seek exemption from the contraception mandate. One of them, Eden Foods, seeks to exempt itself from providing coverage for not just four types of birth control, but for all types covered under the ACA. This is not a long shot: the legal counsel for Hobby Lobby noted that “the argument would apply just as well if the employer said ‘No contraceptives.’” The full legal implications of the Hobby Lobby decision will be answered in these coming suits.
Alexandra Nichipor studied ethics intensively while working on her bachelor’s degree at the Massachusetts College of Liberal Arts. She is currently an MTS candidate at Harvard Divinity School, studying women, gender, sexuality, and religion.
 Burwell, Secretary of Health and Human Services, et al vs. Hobby Lobby Stores, INC., et al., 44.
 Ibid., 5.
 This is a fact that opponents of birth control and abortion often miss. Making these things illegal do not keep women from seeking them, but it does mean that women will suffer more in obtaining them.
 Ibid., 19.
 Ibid., 24.
Image of Justice Antonin Scalia from Flickr via Stephen Masker