The Hobby Lobby’s baseless grab for women’s rights

The Hobby Lobby’s baseless grab for women’s rights January 23, 2014

Business Man Subtly Sexual Harrasing The Business Woman.

As you’re likely aware, some eighty Christian groups and Christian-owned businesses now have wending through the court system lawsuits against the Obama administration, whereby they are seeking to block the contraceptive-coverage requirement of the Affordable Care Act (ACA). Their position is that use of the IUD and the oral contraceptive pills known as Plan B and Ella (all of which are FDA-approved) constitutes not birth control or preventive health care, but abortion.

In other words, they take exception to the moral choice they feel is made by any woman who uses an IUD or takes emergency contraceptive drugs.

The general who is leading the Christian charge against the ACA is conservative evangelical David Green, founder of the family-owned crafts store Hobby Lobby (500 stores in 41 states; 13,000 full-time employees). Green maintains that the government’s mandate to offer his employees insurance that covers the IUD and so-called “morning after” pills violates his right to freedom of religion. As Green told USA Today:

We’re Christians, and we run our business on Christian principles. … Being Christians, we don’t pay for drugs that might cause abortions. Which means that we don’t cover emergency contraception, the morning-after pill or the week-after pill. We believe doing so might end a life after the moment of conception, something that is contrary to our most important beliefs. It goes against the biblical principles on which we have run this company since day one. … The government is forcing us to choose between following our faith and following the law.

Hobby Lobby’s case against the government has made its way to the Supreme Court, which on March 25 will hear its argument that the Religious Freedom Restoration Act of 1993 (aimed at preventing laws that substantially burden a person’s free exercise of their religion) allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.

Below are twelve points and perspectives on this issue that I feel worthy of some consideration. For convenience’s sake from here forward I’ll use “Hobby Lobby” to collectively refer to all of the Christian parties who are suing the U.S. government for the same reason that Hobby Lobby is (the American Family Association, the Southern Baptists’ Ethics & Religious Liberty Commission, the Christian Legal Society, Reaching Souls International, etc.).

1. Although the Hobby Lobby’s case is ostensibly about the right to religious freedoms guaranteed by the First Amendment, its informing principle has in truth more to do with the Thirteenth Amendment, which abolished slavery. A company does not own the bodies of its employees. It therefore has no right to determine how its employees choose to use the insurance coverage they are required to offer their employees. Hobby Lobby doesn’t purchase medical care for its employees; it purchases medical insurance, which it then offers its employees as one component of a total salary package that also includes such benefits as vacation pay, holiday pay, sick pay, overtime pay, a 401k plan, and so on. Hobby Lobby has no more right to tell its employees how to use their health insurance benefits than it does to tell them how to spend the money they earn, or where they should go on their vacation. Health insurance does not belong to the employer. It belongs to the employee.

2. Rick Warren said that requiring employers to provide their employees with insurance that covers contraceptive birth control is like making a law requiring Jewish delis to sell pork. No, Mr. Warren. It’s like making a law requiring, say, 13,000 full-time employees of a nationwide chain of Jewish delis to obey their employer’s edict that they never use the money they earn while working at the deli to buy or eat pork.

3. As evidenced by David Green’s quote above, Hobby Lobby’s argument rests upon its assertion that the IUD and emergency contraceptive pills are “abortifacients”—that is, that they cause abortions. But at best that is woefully misinformed, and at worst a purposeful misuse of inflammatory language.

Let’s let the Mayo Clinic explain:

Morning-after pills can help prevent pregnancy if you’ve had unprotected sex — whether you didn’t use birth control, you missed a birth control pill or your method of birth control failed.

Morning-after pills can prevent pregnancy because conception typically doesn’t occur immediately after sex. Instead, it may happen up to several days later. During the time between sex and conception, sperm travel through the fallopian tubes until they potentially reach an egg. As a result, using emergency contraception soon after unprotected sex isn’t too late to prevent pregnancy.

Morning-after pills do not end a pregnancy that has implanted. Depending on where you are in your menstrual cycle, morning-after pills may act by one or more of the following actions: delaying or preventing ovulation, blocking fertilization, or keeping a fertilized egg from implanting in the uterus. However, recent evidence strongly suggests that Plan B One-Step and Next Choice do not inhibit implantation. It’s not clear if the same is true for Ella.

Keep in mind that the morning-after pill isn’t the same as mifepristone (Mifeprex), also known as RU-486 or the abortion pill. Mifeprex terminates an established pregnancy — one in which the fertilized egg has attached to the uterine wall and has already begun to develop.

In short, the use of emergency contraception is birth control, not abortion.

4. About 50 percent of fertilized eggs naturally fail to implant in the uterus. Shall we then consider Mother Nature, or God, an abortionist?

5. When the owners of Hobby Lobby want to enjoy the legal and personal privileges and protections afforded them by the establishment and maintenance of their for-profit corporation, they do. But they are not then free to also claim, whenever doing so suits their desires, that they, in their capacity as owners of Hobby Lobby, are entitled to the federal protections defined for and extended to individual citizens. The Greens are not personally offering health insurance; their corporation is. No one gets to move freely between corporate and individual status in order to gain the advantages and avoid the disadvantages of either one.

6. The surest way for a company to drown itself in a sea of litigation is to interpose itself into the healthcare decisions made by its employees. Keeping an impenetrable wall between itself and the medical decisions and care received by its employees is foundational to protecting the legal indemnity of any company. Maintaining that wall is one of the primary functions of any company’s human relations department. Give your employees the medical choices that you’re required to? You’re safe. Start dictating what personal medical decisions your employees do and don’t make? Then lawyer up, because you’re gonna need it. It’s a mystery why any pro-business interests (save perhaps Michaels) would support Hobby Lobby’s efforts to forge a new way for American businesses to self-destruct.

7. If based upon its moral convictions Hobby Lobby is allowed to pick and choose the medical benefits it covers, why in the world wouldn’t any other company be allowed to do the same? And how could the criteria for such selections possibly be established or codified? Should a Muslim employer be allowed to refuse medical coverage for an employee who chokes on a ham sandwich? Should vegetarian Hindu employers be allowed to refuse coverage for meat-borne diseases? Should Amish-owned companies be allowed to offer only medical care that is not “of the world”? Christian Scientists believe all sickness is spiritual “error”; should they be allowed to offer their employees no medical benefits at all? Should New-Age employers be protected from having to extend medical benefits to employees who allowed their chakras to misalign? Can employers who are sun worshippers refuse coverage for frostbite? Can Jehovah’s Witnesses deny their employees coverage for blood transfusions, which they are against? Can vampire lovers mandate blood transfusions for their employees?

The whole thing is absurd. Where would such a slippery slope end?

8. Even though it’s suddenly become controversial, employer birth control coverage has been mandatory since 2000, when the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn’t provide birth control were in violation of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. (After learning about the contraceptive-coverage requirement of the Affordable Care Act, Hobby Lobby “re-examined its insurance policies,” discovered that they already covered certain FDA-approved contraceptives to which the Greens objected, and proceeded to exclude those contraceptives from the Hobby Lobby plan.) The only change is that under the Affordable Care Act such coverage is offered for little or no out of pocket cost. This should be welcome news for anyone who favor fairness, since women of childbearing age now spend 68 percent more than men in out-of-pocket health care costs. [1])

9. The Institute of Medicine, part of the National Academy of Sciences, is a “semi-private” organization Congress established “for the explicit purpose of furnishing advice to the Government. The Institute found that nearly half of all pregnancies in the United States are unintended, and that unintended pregnancies have adverse health consequences for both mothers and children—including inadequate prenatal care, higher incidence of depression during pregnancy, and increased likelihood of preterm birth and low birth weight. The Institute additionally observed that use of contraceptives leads to longer intervals between pregnancies, which “is important because of the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” The Institute also noted that greater use of contraceptives lowers abortion rates—which makes sense, since an an estimated 43 percent of unwanted pregnancies end in abortion. Finally, the Institute explained that “contraception is highly cost-effective,” as the “direct medical cost of unintended pregnancy in the United States was estimated to be nearly $5 billion in 2002.” [2].

10. A large two-year study done last year by the University of Washington in St. Louis also found that free birth control leads to dramatically lower rates of abortion and far fewer unintended pregnancies. “As a society, we want to reduce unintended pregnancies and abortion rates. This study has demonstrated that having access to no-cost contraception helps us get to that goal,” said Alina Salganicoff, director of women’s health policy at the Kaiser Family Foundation. “It’s just an amazing improvement,” Dr. James T. Breeden, president of the American College of Obstetricians and Gynecologists, said of the results. “I would think if you were against abortions, you would be 100 percent for contraception access.” Yes. One certainly would think that.

11. Since the moment of their availability, erectile dysfunction drugs such as Viagra and Cialis have been fully covered by most insurance plans. Apparently it’s perfectly okay for men to use drugs that allow them to have sex, but perfectly not okay for women to use drugs that allow them to remain unimpregnanted. Nice. Totally not barbaric. (And in order to counter the perception that being “pro-life” is more about controlling female sexuality than it is about godly behavior, shouldn’t Hobby Lobby also be attempting to restrict its coverage of Viagra to married men only?)

12. If the birth control methods used by the owners of Hobby Lobby ever fail them, and they realize that they may become pregnant, and know themselves to be unable to carry their baby to full term, they are free, based upon their moral convictions, to choose to suffer through their pregnancy and deliver the premature stillborn baby that they and their doctor knew they would. If the owners of Hobby Lobby are forcibly raped, and choose to be impregnated by their rapist rather than use a morning-after pill to prevent that occurrence, that again is their right. What neither Hobby Lobby nor any other employer has the right to do is in any way interfere with the medical treatment, medical decisions, or reproductive rights of their employees.


[1] Supreme Court petition KATHLEEN SEBELIUS v. HOBBY LOBBY STORES, page 5.

[2] Ibid, page 7.

UPDATE: The Supreme Court’s travesty (and Ginsburg’s brilliant dissension)

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