Hobby Lobby hysteria

This arrangement, which is how churches and church institutions will have to operate, is arguably just an accounting trick to salve consciences, and it is surely inadequate to truly protect pro-life principles, but this is where we stand now.  And it’s certainly no reason for the left’s doomsday war-on-women rhetoric.  Those critics have over-reacted without having read the decision or learned about what it says.

From Julian Sanchez,  The Republic of Gilead is Not Nigh | Cato @ Liberty:

If you were judging only from the outraged reaction online, you could be forgiven for thinking that the Supreme Court’s ruling in Burwell v. Hobby Lobby had just mandated the adoption of Margaret Atwood’s The Handmaid’s Tale as the blueprint for American society. Yet as my colleague Ilya Shapiro notes, there’s a profound disconnect between all the rhetoric about “denial of access” to contraception and the substance of the ruling.

At the heart of the majority’s opinion is this: The Department of Health and Human Services has already developed a way to exempt religious non-profit corporations—such as churches, charities, and hospitals—from the legal mandate to pay for employees’ contraception coverage. In what amounts to an accounting trick, they permit those corporations to purchase plans without such coverage, and then require that insurance companies themselves independently provide it to the uncovered employees. Because pregnancy is quite a bit more expensive than contraception, this apparently ends up not imposing any additional net cost on the insurers. The result is that employees of religious non-profits end up with no-copay contraception coverage, exactly as if the employer were required to provide it directly, but the employers are satisfied by this ledger shuffling that they aren’t being compelled to violate their most deeply held moral convictions. Which, one would think, is a win-win.

Against this background, the Court simply held that since HHS has already found a way to achieve the government’s aim of ensuring employees have access to free contraception without compelling non-profit employers to act against their profound religious convictions, they must do the same in the case of for-profit employers, at least where the for-profit corporation is “closely held.” The majority quite explicitly denied this ruling has any implications for cases where there might not be such a happy win-win means of achieving the government’s ends, at no additional cost, without forcing employers to violate their convictions. As Justice Alito’s opinion emphasizes:

The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.

In light of this, the outraged reaction to the ruling ought to seem a bit puzzling. If what you are fundamentally concerned about is whether women have access to no-copay contraception, then there’s no obvious reason to invest such deep significance in the precise accounting details of the mechanism by which it is provided. You might even be heartened by a ruling that so centrally turns on the premise that accomodation for religious objectors is required when no women will lack such coverage who would have enjoyed it under a mandate.

The outrage does make sense, of course, if what one fundamentally cares about—or at least, additionally cares about—is the symbolic speech act embedded in the compulsion itself. In other words, if the purpose of the mandate is not merely to achieve a certain practical result, but to declare the qualms of believers with religious objections so utterly underserving of respect that they may be forced to act against their convictions regardless of whether this makes any real difference to the outcome. And something like that does indeed seem to be lurking just beneath—if not at—the surface of many reactions. The ruling seems to provoke anger, not because it will result in women having to pay more for birth control (as it won’t), but at least in part because it fails to send the appropriate cultural signal. Or, at any rate, because it allows religious employers to continue sending the wrong cultural signal—disapproval of certain forms of contraception—when sending that signal does not impede the achievement of the government’s ends in any way.

See also this analysis, which sees the ruling as a victory for women’s rights, while still accommodating religion.