Tearing Down the Straw Men Surrounding the Hobby Lobby Decision

The Supreme Court’s decision in Burwell v. Hobby Lobby is stirring up a hornet’s nest of anger and vitriol. The problem is that liberal commentators and Democratic politicians seem to believe that the decision reaches much farther than it does, and they seem intent on spreading the misinformation. Here’s a sampling of the inanity:

Let’s try to knock down some of the strawmen that is passing for reasoned analysis in this debate:

This is not Obamacare’s contraception mandate:

We say that primarily because the contraceptive mandate isn’t in the text of Obamacare, it was added years later through the rulemaking process. As Reihan Salam explained on CNN: “We talk about this as a blow to the Affordable Care Act, but here’s the thing . . . the Affordable Care Act did not include this mandate. This was a mandate from the Department of Health and Human Services and actually several pro-life Democrats who voted for the Affordable Care Act have said they would not have voted for the law had the mandate been explicitly debated.”

The case isn’t about contraceptives:

It’s about abortifacients. Hobby Lobby officials have specifically said that they do not object to contraceptives. Indeed the company already provides insurance plans that cover 16 other forms of birth control, including pills that prevent ovulation. What Hobby Lobby says runs afoul of their pro-life, religious beliefs are specific forms of birth control (IUDs, contraceptive rods, and morning after pills) that interfere with a fertilized egg implanting in the uterus, either leading to the destruction of the embryo or a “miscarriage.”

The decision has nothing to do with most employers:

The decision only recognizes the right of “closely held for-profit corporations” that “have sincere Christian beliefs that life begins at conception.” Closely held companies are generally owned and controlled by members of a single family. Even if it weren’t explicitly referenced in the Court’s decision, Justice Alito’s opinion explains why it’s unlikely to become an issue:

For example, the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s (Religious Freedom Restoration Act’s) applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.

Speaking of the RFRA, the Court’s decision doesn’t mean some employees will go without abortifacient coverage, should they want it:

The RFRA was a bill passed unanimously in the House of Representatives and with near unanimity in the Senate. It was signed by President Bill Clinton. The law states that a “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling government interest.”

The misnamed “contraceptive mandate” clearly fails that test because there are other ways that women can have access to the four contraceptives at issue. The Court writes:

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections.

In other words, the Obama Administration has already made an allowance and established a workaround for religious nonprofits, why can’t a similar scheme be established for for-profit entities?

All told, there is certainly room to debate the merits of the Court’s decision. But let’s at least make sure we’re talking about the actual constitutional issues at play, not merely making political statements that are aimed at stoking ire or soliciting donations.