The Supreme Court is expected to rule on whether Hobby Lobby needs to cover contraception as part of its health care plan.
Owners of the crafts chain object to certain forms of contraception. Under the affordable care act employers are now required to cover birth control.
The Court ruled in favor of Hobby Lobby in a 5-4 decision. So much for saying there is no war on women. The buffer zone ruling and the contraceptive ruling both are directed at women. No one else.
To prove a point, the Court specifically stated their ruling was just about contraception, and not other things, like blood transfusions. You don’t get any more religious than the Jehovah’s Witness ban on blood transfusions for their members. That was a mighty short sighted ruling, in my opinion. Furthermore, corporations shouldn’t have religious beliefs. Corporations are legal units serving as one body. Funny how inanimate bodies can now have religious beliefs.
Stay tuned.
In light of the ruling on buffer zones, I expect they will rule in favor of Hobby Lobby.
The results are in.
Religious freedom was upheld.
Interesting. What about those who disapprove of blood transfusions for religious reasons? Were their “religious freedoms” upheld? I expect the jehovahs Witnesses might have something to say about that.
No real surprise in the decision. This one was a given since the Hossana-Tabor ruling a couple of years ago. The Supreme Court made it very clear then that the government doesn’t get to tell people what their religious beliefs are. The government never could overcome the level of scrutiny needed when there were such easy alternatives like buying your own contraception. There was a chance of a 6-3 but Breyer didn’t switch over.
It’s been an interesting season. Labor unions really took it on the chin the last two weeks. The NLRB ruling and now the ruling on home health care workers. Of course, it hasn’t been a great couple of weeks for Obama either. His administration was on the losing side of all of the major cases in the last two weeks. Some of that is to be expected with the current court, but the 9-0 ruling on the NLRB had to have stung someone who used to teach ConLaw.
Getting back on subject, the next big legal hurdle for Obamacare is Halbig v. Sebelius. Two weeks ago I’d have said it could go either way. Now I think it’s about 70-30 that the court strikes down the IRS interpretation of Federal exchange subsidies based on the NLRB ruling. The court really seems to be saying that Congress says something, they mean exactly what they say, and if its wrong, then the remedy is in Congress. (ie. partisan gridlock is not sufficient justification for extra-Constitutional means.)
The takeaway from all of this is that the Roberts court is very big on scrutiny arguments. If the government wants to compel action, they’d better have a compelling reason and more importantly, NO potential alternatives to meet the same goal. That’s what killed the 35 ft. buffer zone at abortion facilities and it’s what killed (well, wounded at least) the contraception mandate.
I simply do not see this as a religious issue. The government isn’t forcing anyone to take contraception. It was forcing insurance companies to provide contraception.
I would hate to pay for a tubal ligation out of pocket. That really shouldn’t be up to your boss.
“The Supreme Court made it very clear”
by a 5-4 margin?
Seems to me Democratic political operatives must be jumping for joy at this. Republicans are the anti-contraception party.
@Rick Bentley
Good God man, can you read? Look at what I quote and don’t quote me out of context:
I said: “This one was a given since the Hossana-Tabor ruling a couple of years ago. The Supreme Court made it very clear then…”
I was obviously referring to Hosanna-Tabor which was a 9-0 ruling. So yes, the Supreme Court made it very clear in Hosanna-Tabor where the current court was on the subject of religious rights. You may or may not agree with them, but what their position is really shouldn’t be in dispute or a surprise to anybody who was paying attention.
But I’m sure you’ll be equally clueless in a year or two when Halbig v. Sebelius is decided even though the outcome is pretty obvious in light of NLRB v. Canning.
Okay, okay, calm down : sorry.
Now that people have had a chance to actually read the decision, there are a couple of details in the decision that were apparently of significance:
1) The court made a distinction that Hobby Lobby was closely held (ie. they really are a family owned company) A publicly held company would most likely not have been able to claim a religious exemption.
2) Hobby Lobby does provide contraceptive coverage on their health insurance plans. They do not cover drugs that they (Hobby Lobby) consider to be abortificants. Not that will change anyone’s opinions here, but it is probably a big difference for Hobby Lobby employees.
3) Technically, the court didn’t strike down any part of the ACA as passed by Congress. What was struck down was an HHS administrative ruling that abortificants had to be included in the contraceptive coverage mandated in the ACA. Had Congress explicitly included language about abortificants in the ACA, it might have stood. Alternately, or should I say, especially, if Congress had included a clause in the ACA that exempted it from the RFRA (Religious Freedom Restoration Act) Congress can legally do that, but they didn’t with the ACA.
It sure looks like a pattern is emerging with NLRB v. Canning, Hosanna-Tabor, Hobby Lobby and eventually Halbig v. Sebelius. The current court seems to put a lot of stock in separation of powers and that the law is what the legislative branch passed as law and put much less stock on administrative interpretations. If Congress passes a bad law, the remedy is to correct it in legislation. You could argue the original ACA case followed the same pattern of giving a lot of deference to Congress’ authority to make law.
@Moon-howler
The decision didn’t rule out other forms of birth control. It would appear that ligation might be OK. Think about your comment carefully re: you, ” do not see this as a religious issue.” The government isn’t forcing the insurance companies to do anything-the issue is forcing employers to provide insurance that has a contraception method their religious beliefs find objectionable. I’m not certain the Jehovah’s Witness suggestion holds up. A broad coverage regarding transfusions does not require them to use it. And Indon’t suspect eliminating the coverage would do much to the cost of the insurance.
Who is Hobby Lobby to decide what is an abortifacient and what is not?
As I recall, I don’t recall seeing RU-486 on the list of approved contraceptives.
Moon-RU-486 IS an abortifacient.
@Furby McPhee
Furby, pretty nice summary, but your conclusion on a SC pattern in favor of separation of powers doesn’t hold. The same split court invalidated legislation passed in 2006, deciding that it knew better than Congress whether pre-clearance was still needed. This was in spite of Congress holding extensive hearings before extending the clause, which had been in effect since 1965.
Whether or not one agrees that it was time for pre-clearance to go, it’s clear that this court (at least the conservative majority) negated congressional action and only believes in separation of powers when it’s convenient for their needs.
Of course, they also believe that money is speech, corporations are people, and now a company can be religious (but a corporation can’t!). Heaven (or Hobby Lobby) help us!
I was talking about the Voting Rights Act above, by the way.
I’m not sure there was a separation of powers argument made in the case that struck down the preclearance jurisdictions in section 4 (or was it 5) of the VRA. Or at least not as separation of powers is classically defined (Legislative v. Executive branch.) Obviously there was judicial review, but that’s about as settled as any law can get. I think the VRA issue was argued on federalism. (ie. states rights, although that is such a loaded term)
I never said the Roberts court was going to abandon judicial review and allow Congress to pass laws the court thinks are unconstitutional. The Roberts court seems to be saying Congress has the prerogative to pass bad laws as long as they are constitutional. That’s separate from the court enforcing separation of powers much more than in the past.
As for the specifics of striking down preclearance, the court ruled that Congress did not meet the very high scrutiny requirements needed for preclearance based on the fact Congress was citing data from before 1965. The court did not strike down preclearance as a concept. Only that the justification for the specific set of jurisdictions was too old to be relevant.
And honestly, you have to agree to some degree. Prince William County was subject to preclearance under VRA. But yet, PWC voted for Obama twice. How can PWC be so biased against blacks that it needs preclearance while simultaneously voting for a black presidential candidate? That’s hard to reconcile and shows that the jurisdiction list is out of date.
The court explicitly said that the concept of preclearance was constitutional if it was based on recent evidence of clear systematic bias. In simpler words, the fix is for Congress to pass a more updated list of jurisdictions that require preclearance. (Yes, I know doing so in the current Congress is all but impossible, but that’s not the Supreme Court’s problem.)
So I don’t see the VRA case as a contradiction of my premise that the Roberts court has a bias towards separation of powers. If anything, it shows the Roberts court is really sympathetic to scrutiny arguments.
(And one last sidebar on the Hobby Lobby case. The Solicitor General, Verrilli, is terrible. HHS shot itself in the foot in the Hobby Lobby case when they conceded that non-profit corporations could have valid religious objections. That nearly conceded the entire case. So HHS was left to argue that making a profit somehow invalidates the 1st Amendment rights HHS already conceded corporations had. Good luck with that. Verrilli very nearly lost the big ACA case last year too, except that Roberts decided to include the taxing authority argument Verrilli didn’t bring up. Obama really should replace Verrilli with someone who can defend the administrations positions better.)
A very slippery slope was created with this decision. The Court is upholding one religions right above another. It holds that this decision does not address mandated coverage such as blood transfusions, IV fluids, vaccinations and others. Why is one religious right greater than another? A very slippery slope. What is a closely held cooperation?
I do understand where hobby lobby was coming from – but the law does not say that one must use the contraceptives they object to, just that it needs to be provided for in their health plan that is used by their employees.
I think because contraception is all about sex. Blood transfusions are not. Somehow sex makes some of the jurists crazy.
Did I read that they still cover vasectomies and Viagra? Good grief.
The court really showed how out of touch it is with laws that protect women wit the buffer zone case and the Hobby Lobby case.
An IUD prevents implantation. Am I nuts or did the Court just validate the notion that life begins at fertilization?
The contraception chosen by Hobby Lobby to ban isn’t an abortifacient. So they get to be stupid and wrong at how many women’s expense?
I will never buy that companies have a religion.
@Pat.Herve
A closely held corporation is a company that is owned by either an individual or by a few people or small group. Which is what Hobby Lobby is from what I understand. The company is owned by just 1 family.
I hope no woman in America will enter their doors.
George Soros owns a tightly held hedge fund, doesn’t he?
@Jackson Bills
thanks – Yes, according to the IRS – 5 or less people must own 50% of the company – so, what about a large family – even HL – when the founder dies and his stock is distributed to his kids – does it still qualify for the exemption if 50% of the stock is distributed over say 6 people? What about two founders – when the company gets distributed at death to children? Very slippery slope.
http://www.irs.gov/Help-&-Resources/Tools-&-FAQs/FAQs-for-Individuals/Frequently-Asked-Tax-Questions-&-Answers/Small-Business,-Self-Employed,-Other-Business/Entities/Entities-5
good question Pat, since I don’t own a company I’m not quite sure how that is decided. I would assume that if the IRS says that 5 or less people own 50% then if a 6th person inherits stock that disrupts that 5 and 50% rule it would no longer be considered a ‘closely held corporation’.
The IRS is pretty diligent when it comes to those rules, not so much when it comes to following their own rules.
SCOTUS took religious freedom and privacy from employees and gave it to the corporations (at least non-public ones.) Congress can fix it buy amending RFPA so it excludes corporations.
I’m concerned that conservatives think the religious beliefs of the corporate owners trumps an individual’s religious beliefs. What happened to the notion of the supremacy of individual rights versus collective rights. Are conservatives going all socialist on us?
@Ed Myers
It’s the SCOTUS that thinks the religious beliefs of the owners of closely held corporations trumps the beliefs of the federal government. No more, no less. It’s a pretty narrow ruling that liberals somehow distort into this view.
What happened to the notion of the supremacy of individual rights versus collective rights? Nothing, closely held corporations are individuals who, according to the SCOTUS, have religious rights v.s. the collective.
I agree with you on RFRA, which was a bipartisan bill that Bill Clinton singed into law. Which brings up a funny notion, I wonder how Democrats of today view Democrats of a few years ago. From DOMA to RFRA… it’s funny, they passed these things into law and now the detest them and somehow it’s all conservatives fault. Odd…
That doesn’t explain why vaccinations and blood transfusions weren’t included in their ruling. Those were specifically mentioned.
It sounds like the 1st amendment has been compromised. Obviously the government can set up a religion.
Some interesting figues from the WaPo about how many people could be impacted by this decision:
http://www.washingtonpost.com/blogs/the-fix/wp/2014/06/30/a-lot-of-people-could-be-affected-by-the-supreme-courts-birth-control-decision/
Furby, separation of powers extends to legislating from the bench, too, or judicial activism as some folks call it. Declaring preclearance unconstitutional after nearly 50 years because some of the data congress looked at in their extensive hearings was old would certainly fit the activist category for the 5 jurors that did it.
Your contention that preclearance is outdated is belied by the fact that most of those states almost immediately passed voting laws that overwhelmingly affect minority voters after the change, including Virginia.
Finally, amazingly tortured logic is required to declare a corporation to be an entity that can embrace religion, just as with the decisions previously that corporations are people and money is speech. These all fit the category of activism and therefore violate the separation of powers.
@middleman
You have a different definition of separation of powers than what is commonly accepted. You are free to make a case for judicial activism, but the court striking down section 4 of the VRA while leaving the rest in place is not exactly a symptom of an out of control judiciary. You’d have a stronger argument for judicial activism if the court had completely invalidated the concept of preclearance, overturning 50 years of precedent in doing so. But the court didn’t do that. Congress remains free to pass updated criteria for preclearance. You could argue that PWC should still require preclearance based on more recent events, but you’d need to show evidence. I think you would have a very hard time finding a court that would accept preclearance justification based on disparate impact without demonstrated harm, which is what you are advocating. Preclearance was put in place because there were real, systemic attempts to keep blacks from voting including deaths. Moving polling places or photo ID laws is not comparable.
You do understand that preclearance was always intended to be a temporary measure given the extraordinary degree that it goes against basic rights of the states, right? It was an extraordinary measure needed for extraordinary circumstances. Those circumstances have (thankfully) changed and it doing so undercut the argument for preclearance as originally written in the VRA.
I never said that preclearance was outdated as a concept, and neither did the court. I said that most people would agree that there have been changes in racial attitudes since the early 1960s and that preclearance needed to reflect that.
If there is so much racial discrimination that preclearance is needed, why is it so hard to come up with updated criteria? It seems odd that the states and counties requiring preclearance is EXACTLY the same as it was 50 years ago. In reality, you and I both know Congress was phoning it in on section 4. It got approved without changes for decades. Eventually it got so out of whack with reality that the court ruled it unconstitutional. So fix it. Develop updated criteria and apply them to the racial problems of today, not 1965. What is wrong with that as a remedy?
All these issues derive from government mandates on businesses in the US. Many of them could be avoided if the government simply allowed businesses to provide tax-free dollars for employees to purchase healthcare coverage rather than required businesses to offer medical coverage. If the employee chose not to use the tax-free dollars for healthcare, (s)he could be taxed at a punitive rate.
Providing money in lieu of healthcare coverage would make businesses more competitive on the global market, because the overhead and staffing for HR benefits offices could be reduced drastically. It would return free choice for healthcare to the employee. It would prevent companies from influencing healthcare choices, while avoiding religious objections of business owners due to particular medical procedures.
How about Hobby Lobby simply give each woman employee the money for whatevrer they can’t get. They wouldn’t have to justify anything.
How does the court rationalize that this decision would not be extended to blood transfusions and vaccinations?
I have no idea. Cognitive dissonance on the high court is alive and very well.
I guess one religion trumps another.
@Moon-howler
The Hobby Lobby decision and others courts draw a distinction between medically necessary procedures to treat or prevent illness or injury such as transfusions and vaccinations and elective medicine. The four specific birth control options Hobby Lobby objected to are not used to treat an illness or injury. Hence, in the eyes of the court coverage of birth control is elective and there is less medical need to require employers to cover them under insurance plans.
And again, I’m not saying I agree or disagree. You asked how the court rationalized it, and that’s how they did.
Men rationale it. Their reasoning is extremely flawed. Birth control is medically necessary for many people for a variety of reasons. Let’s also not forget that child birth is an arduous process and there are many graves out there because of women dying in child birth.
I almost wish you hadn’t told me that. It makes me want to castrate all 5 of them.
Why on earth is the subject of birth control minimized by males?
These A-holes are all apposed to abortion. Damn. The best way to avoid abortion is to avoid pregnancy. Rarely has a court case made me as angry. These people are idiots.
@Pat, read the footnotes. That’s where all the good stuff is in these opinions.
@Jackson. The impact of a corporation’s beliefs do not affect the broader society (e.g. we the people as government) as much as it does the employees. I am curious where this goes. Will employees sue for religious discrimination if Hobby Lobby tailors their health care plan so only people of like religious beliefs are able to work there? Is eliminating birth control creating a gender-hostile and religion-hostile work environment that runs afoul of discrimination laws? In this case it is moot only because employees can get birth control for free thus eliminating any discrimination. I expect the next case will center around the civil rights of the employees when corporations fire homosexuals to exercise their religious tenets.
@ed myers
can you reference the footnote you are alluding to. thanks.
Furby, I am obviously not advocating preclearance justification based on disparate impact without demonstrated harm. The fact that you completely ignored the information I presented regarding state’s actions immediately following the court decision doesn’t change the fact that preclearance is obviously still needed due to those same actions. THAT is the demonstrated harm, after the fact.
As to your comments on congress remedying the situation, your own previous post acknowledges the futility of that happening: “(Yes, I know doing so in the current Congress is all but impossible, but that’s not the Supreme Court’s problem.)” And the reason that won’t happen is that the Tea Party controlled House, which is the last bastion of the “old white men’s party” knows that anything that increases minority voting hurts them. Racism isn’t only white southerners beating black women with nightsticks, it’s intimidating and interfering with black and brown voters however they can. Reducing early voting, onerous voter I.D. changes, reducing polling places are all changes that primarily affect minority voters.
Furby, there are three branches of government, and overreach by any branch violates separation of powers in any conventional definition, so I disagree with your narrowing of that concept to fit your narrative. The SCOTUS re-legislated the Voting Rights Act, and that is the very definition of a violation of separation of powers.
By the way, Hobby Lobby has no “religious” issue about INVESTING in birth control, including “Plan B” and IUD’s:
http://money.cnn.com/2014/07/01/investing/hobby-lobby-401k-contraception/index.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fmoney_latest+(Latest+News)
I guess religion is important when it could prevent you from SPENDING money, but not when it could keep you from MAKING money. So much for religious corporations…
@middleman
I am fully aware that I am not going to convince you that your definition of separation of powers is wrong. My comment was for others who might actually be confused on the subject.
Go ahead and name a specific instance of harm that has occurred since preclearance was voided. Not disparate impact which is what you are saying when you saying “Reducing early voting, onerous voter I.D. changes, reducing polling places are all changes that primarily affect minority voters.”
You said there state actions that demonstrated harm. Put up or shut up. And don’t just post it here. The DoJ would LOVE to know about it. They’ve been looking for a test case ever since section 4 was voided. If you’ve found what they haven’t, they’d love to know about i.
Of course, what’s the point. I’m arguing with someone who thinks a 401(k) is the same as owner’s investments. (Re your post claiming that HL “invests” in birth control)
But still, name your demonstrated harm. That’s a big claim, so put up or shut up.
The owners of Hobby Lobby are not Catholic. They belong to a branch of evangelical Protestantism. They have a religious faith objection to abortion, not contraception. Their company insurance policy covers 16 types of contraceptives. They had no problem with that. It was the abortifacients to which they objected.
The contraceptives that they excluded didn’t cause abortions. I guess its ok to be misguided also.
So let’s not call their objections “abortifacients.” That simply isn’t correct.
Very ironic that two of the contraceptives that they object to – Plan B and Ella – were covered under their insurance plan until 2012. One would have thought they never covered it, by the way they talk about it.
I will agree with you 110%, please list the 4 out of 20 and proof those 4 are not soely intended to destroy an already fertalized egg. I’m by no means an expert on these 4 drugs but I’m glad you are and can provide us with some education on each of them, what effect they have and what their intention is.
I am too lazy.
There were four types of birth control at the center of Hobby Lobby’s contentions, though: Plan B, which is also known as the “morning after pill,” Ella, another emergency contraceptive, Copper Intrauterine Device and IUD with progestin
Feel free to report back. Conception is medically defined as implantation by a fertilized ovum in the uterine wall.
Moderation? Why?
I haven’t been out of line have I? Did I curse? Did I call anyone a name? I just happen to have an opinion that differs than some here. That requires moderation? I’m confused….
No you haven’t been. Did you use an old IP address?
Let me know.
Be careful about links and about using the expression AGW. It is a trigger also.
Sounds like Furby’s getting a little peeved at me! Sorry, Furby, I’ll try to be gentler as I “put up!” I do really appreciate your attempt to educate “others” who are “confused” using your breadth of knowledge.
Here’s one case by DOJ that was brought after congress acted to gut the preclearance requirement and N.C. immediately changed a bill under consideration in light of the changes:
http://www.ncpolicywatch.com/2014/06/19/first-test-for-voting-law-challenges-coming/
I’m sure there are others.
The concept of separation of powers goes back at least as far as Montesquieu, who wrote “The Spirit Of The Laws” in 1748 describing the separation of political power among a legislature, an executive and a judiciary. In his view “The judiciary was generally seen as the most important of powers, independent and unchecked”, and also was considered dangerous. It’s ok to be wrong on this Furby, we still love you- but all the grumpy posts in the world won’t make you right.
As to “religious” beliefs and how investment in a 401(k) relates to investment in a health plan, neither of which REQUIRES anyone to do anything, I think most of the “others” reading this understand the connection- unless they’re “confused.”
@middleman
The reason I am getting a bit brisk with you is because you simply put are making up your own definitions for well defined concepts.
You claimed in post #37: “Furby, I am obviously not advocating preclearance justification based on disparate impact without demonstrated harm.”
I called you on it to name a specific instance of demonstrated harm.
You posted your link in post #48. Looking at your link we see: “The law’s disproportionate burdens on African Americans, the highly unusual and expedited manner in which HB 589 was enacted, the evidence that was before the legislature at the time, and the absence of any credible legislative rationale all show that the legislature enacted the statute (at least in part) to depress minority voter turnout.”
So you claim to not be using disparate impact as a justification for preclearance, but yet the only claim of harm you can come up with relies on “disproportionate burdens on African Americans”
But yet you clearly think that is demonstrated injury.
I can’t possibly convince you that you are factually incorrect when you simply ignore your own evidence and well known and accepted definitions.
So I’m not going waste any more time debating this. Congratulations. You clearly have won the debate through a standfast avoidance of fact and reality.
It looks like the Male Supremes remain domineering. They blocked the contraceptive mandate for Wheaton College. The Women Supremes are pretty much outraged.
It follows no logic or at least not the same logic used in Hobby.
Male dominance still tries to bleat out a few last dying breaths.
Furby, I’m not at all sure what you’re arguing here. Your charge to me (in post #39) was to show (“put up” in your parlance) a DOJ case showing specific instance of harm, and that’s what I did. You challenged “my” definition of separation of powers, and I showed you that from the earliest initiation of that concept it has always involved all three branches of government, which is logical and reasonable.
There’s no debate on these points, Furby. You are wrong, so it would behoove you to accept that new (to you) information and adjust your views accordingly. If you don’t, you will be forming opinions based on falsehoods, only now you will do it knowingly.
@Furby McPhee
“I can’t possibly convince you that you are factually incorrect when you simply ignore your own evidence and well known and accepted definitions.”
Welcome to my world.