Hobby Lobby

Jul. 2nd, 2014 08:51 pm
alexkaufmann: (Stanley Cup)
[personal profile] alexkaufmann
Watching the reaction to the Hobby Lobby decision, it seems as if the people with the strongest opinions are the ones who have the most tenuous grasp of the facts. Some of the hyperbole has crossed the line from ridiculous to downright absurd. I think some facts are called for.

There are 20 forms of contraceptive covered by the ACA. Hobby Lobby has an issue with four (4) of them. Sixteen forms prevent conception, the four in question are designed to prevent the implantation of a fertilized egg. If you believe (as the owners of Hobby Lobby do) that life begins at conception (a belief protected by the First Amendment, whether you like it or not), paying for those four drugs violates your conscience. The Religious Freedom Restoration Act (passed almost unanimously by Congress and signed into law by President Clinton) prevents the government from coercing people (like the owners of Hobby Lobby) into violating their religious beliefs.

The RFRA was passed in response to Employment Division v. Smith (1990) where Justice Scalia, writing for the majority, found that states could deny unemployment benefits to people fired for the use of peyote, despite it being part of a religious ritual. Scalia wrote that while states could accommodate otherwise illegal acts done in pursuit of religious beliefs, they were not required to do so. The Congress (with both houses controlled by the Democrats) passed the RFRA to change that. Scalia, as part of the majority in the Hobby Lobby case, was actually following the law that had been passed to change the results of his previous decision.

So, the female employees at Hobby Lobby are not being denied coverage for birth control and Scalia (and the other four members of the majority) is not making things up as he goes. If an employee of Hobby Lobby wants access to Plan B, she can buy it herself. Employees of Hobby Lobby are not being denied access to Plan B. The court has simply said Hobby Lobby cannot be forced to pay for it. No one is saying an employee will be fired for using it.

Alternatively, if this really were about the employees' access to the four (of 20) birth control methods, there are ways to achieve that. Current federal law requires insurance companies to cover those four types of birth control for religious non-profits without requiring the company to pay for them. The insurance companies are not allowed to bill the non-profit for that coverage. President Obama (he of the pen and phone) can issue an executive order requiring the same thing for companies like Hobby Lobby. Executive order is how the non-profits got their exemption. The majority decision, written by Justice Alito, even mentions that possibility.

Technically, if he so chose, President Obama could even issue an executive order requiring the government to pay for those drugs.

It's not like President Obama is shy about using executive orders. So why are none of these things happening?

In a word-- politics.

The Democrats are looking at an electoral defeat worthy of the Washington Generals (the team that plays the Harlem Globetrotters) in November. They are desperate to energize their base-- the very people whose happy ignorance of the above-mentioned facts allows them to see the Hobby Lobby decision as a repeal of the 19th Amendment and the greatest threat to women in the history of humanity.

Without these voters, the Democratic Party will lose the Senate in November. Using an executive order to change the result of the Hobby Lobby decision would mean losing this as an issue in November. Keeping the status quo means fundraising opportunities and a GOTV effort.

If this really were about access to birth control, President Obama could use his pen and phone to make it so tonight. That he doesn't, shows this for the naked, desperate political maneuvering it really is.

Anyone who thinks the Democrats see the Hobby Lobby decision as anything other than a political opportunity is deluding themselves.


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Alexander Kaufmann

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