“See? That was nothing. But that’s how it always begins. Very small.” – Egg Shen, Big Trouble in Little China, 1986
No, America has not become a theocracy.
Monday’s SCOTUS Ruling in Burwell v. Hobby Lobby Stores, Inc. isn’t the end of personal liberty.
The decision does not automatically herald the end of women’s reproductive rights.
The ruling does not give employers the power to impose their religion on employees.
Nor is this some great biblical victory for the religious freedom of corporations, closely held or otherwise.
And not for lack of effort by certain parties.
After decades of steady progress, this decision isn’t exactly a step backward, it’s more of a drunken preacher’s teetering stagger sideways.
Which is not to say we shouldn’t be concerned, because we damned well should be.
In the grand scheme of things, the Hobby Lobby ruling is just a small piece of a much larger agenda. And it can be reversed, but rage and hyperbole are not helping matters.
For Hobby Lobby’s owners, this case was about their religious liberty, about the rights conferred upon all American citizens via the First Amendment, and specifically about an objection of conscience.
On the surface this case was about one word: Abortifacients.
Hobby Lobby’s principal owners, the Green family, object to paying for something that goes against their own personal religious convictions. The Greens and their lawyers were careful to repeatedly emphasize that their objection was not contraception itself, but rather abortion, or more specifically what they define as abortifacients. According to their religious beliefs, that’s the fundamental difference between the methods of birth control they are willing to support and those that they are not.
Despite the invective, hyperbole, and raging hysteria being bandied about, this is not in and of itself unreasonable.
Unlike many religious argument, the objection is at least internally consistent.
The First Amendment undeniably protects each citizen from being forced to do something against their religious beliefs. We can’t force Muslim or Jewish kids to eat pork as part of a mandated school lunch program. We can’t make a Quaker into a Marine. We can’t force a Catholic doctor to perform abortions. We can’t force an atheist to accept Jesus Christ as her personal lord and savior in order to hold public office. (Just go with me on that last one)
But the First Amendment was intended to protect people, citizens, not corporations.
And that’s where Chief Justice John Robert’s Supreme Court has profoundly lost its way.
Despite the understandable outrage from those opposed to the SCOTUS decision, Hobby Lobby does not object to paying for birth control.
Birth control, the actual prevention of pregnancy, was not the issue, though you’d be hard pressed to convince a lot of very angry people of that right now.
But the truth of the matter is that Hobby Lobby via their current medical insurance plan does pay for birth control, sixteen different kinds in point of fact, including: male condoms, female condoms, diaphragms with spermicide, sponges with spermicide, cervical caps with spermicide, spermicide alone, birth-control pills with estrogen and progestin, birth-control pills with progestin alone, birth control pills (extended/continuous use), contraceptive patches, contraceptive rings, progestin injections, implantable rods, vasectomies, female sterilization surgeries, and female sterilization implants.
It’s important to note that this list does include those protocols used to treat certain medical conditions. That is, Hobby Lobby’s medical plan acknowledges the completely valid argument that drugs such as birth control pills are not just about having sex or preventing pregnancy. And Hobby Lobby is absolutely willing to pay for those methods used to lower specific cancer risks, endometriosis, a variety of debilitating menstrual related issues, and to increase fertility.
Hobby Lobby – and by extension, the Green family – are not telling their employees they can’t have sex or that if they do they’re sluts and whores and ungodly sinners. Hobby Lobby isn’t saying they object to birth control, because they are in point of fact actually including it in their health care plan and always have.
The problem with claiming that Hobby Lobby is attempting to force their religion upon their employees specifically by denying them any access to birth control is that you not only end up vilifying the company for the wrong reasons, but more importantly this kind of hyperbolic rage hides a much more disturbing implication.
What the Green family actually objects to are four specific birth control methods: Plan B, the so-called Morning After Pill; Ella, a form of emergency contraception similar in usage to Plan B; the copper Intrauterine Device (IUD), and the IUD with progestin.
Neither of the “emergency contraception” pills are used to treat any medical condition other than potential pregnancy, and they are not standard daily birth control methods by definition. However, in some cases, an IUD may be the only form of permanent personal birth control (short of a tubal ligation) for women who for whatever reason cannot use hormone based methods.
While each birth control method varies in the specifics of how they work, the fundamental difference between acceptable and objectionable (to the Green family and the many others who share their beliefs) is that the acceptable methods prevent conception and the unacceptable methods prevent attachment of a fertilized ova to the uterine wall.
For the Green family, as for many of their particular religious belief: life begins at conception.
For the Greens, anything that prevents a fertilized ovum from implantation – such as Plan B or an IUD – is, according to their beliefs, ipso facto an abortion.
The owners of Hobby Lobby did not say that their employees could not use those four methods of birth control, or that they would be fired or face other negative consequences if they did, only that the Green family did not want to pay for it because they feel those methods constitute abortion. They feel being forced to pay for abortion violates their First Amendment rights. And the Court agreed.
And there’s the rub.
I’ve watched for three days now, waiting.
Unmentioned in the majority opinion, missing from Justice Ginsberg’s scathing dissent, lost among the Left’s towering outrage and the Right’s smug self-righteousness, it seems to have gone by unnoticed, that small ominous implication.
But, like the man said, that’s how it always begins, very small.
The very crux of the abortion issue is when and where human life begins. At conception? At implantation? At viability? At birth? Every single possible benchmark has legal, medical, social, religious, ethical, and moral implications, significant ones. All directly impact individual liberty as we Americans generally define it. The answer isn’t something that can be easily and obviously quantified, rather it’s a philosophical one and thus something we as a people will likely never agree on.
And that brings us back to the word: abortifacients.
In the court’s 5-4 majority opinion, Justice Samuel Alito wrote,
“The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the [Obama administration’s contraception] mandate, they believe they will be facilitating abortions…”
And that, that right there, that quiet innocuous almost unnoticed legal assumption, that’s the real issue here.
By essentially agreeing with the Green family that Plan-B, Ella, and IUDs are in point of fact abortifacients, despite the fact that they are not medically classified as such, the Supreme Court of the United States has done far more than rule on women’s health care, they’ve ruled to settle the philosophical question of when life begins.
Or rather, they’ve allowed corporations to decide.
Not people. Not the court. Not even the government. Corporations.
Whether or not the majority opinion out-and-out says it, this ruling directly implies that life begins at conception – if your employer says so.
This has ramifications far, far beyond whatever momentary outrage the Left might feel towards the Greens and their company – justified or not. This decision has ramifications far beyond the various half-hearted doomed-to-failure attempts at a boycott of Hobby Lobby, or useless Facebook petitions to amend the Constitution in order to term-limit conservative Supreme Court justices.
No, this decision de facto rules human life begins at conception when it is convenient for a corporation to believe that it does.
And don’t think corporate America won’t notice.
And don’t think religion won’t notice.
And don’t think the right-to-lifers won’t notice.
Because they will.
If history is any guide – and when it comes to politics and religion, history is usually a damned accurate predictor of what comes next – corporate America, the various churches, and the anti-abortion movement will take this decision and run with it.
We already live in a supposed republic where corporations have more constitutional rights than actual people, a bizarre condition created by this very same Robert’s Court.
We already live in a democracy where anonymous corporate money determines which votes count and which ones don’t, a bizarre perversion of the First Amendment co-opted from actual human beings and bestowed whole-cloth upon Wall Street by this very same Supreme Court.
In all but fact, we already live under an oligarchy of corporate political parties, by political parties, and for political parties, a bizarre gerrymandered condition that if not actually created by this particular Supreme Court is certainly enthusiastically perpetuated by it.
And now the Roberts Court has given corporations the right to religion as well.
More than that, this court has given corporations the power to decide when life itself begins.
The majority opinion waved its hands and pretended to limit the scope of the ruling, but this is just one more move in the conservative long-game Chief Justice John Roberts is playing. This isn’t an isolated ruling, it’s part and parcel of a decades long strategy driven by ideology – and you have to look no further than the many rulings that directly remove rights from individual citizens and/or power from the government and award both directly to corporations. Those rulings almost universally break out along party lines, every time.
Just as this one did.
When corporations become indistinguishable from churches, you can bet government isn’t far behind.
Those warnings Justice Ginsberg voiced in her dissent? “Employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations,” those things? Those are the least of what’s coming. Those are the least of what corporations run by religious fanatics will attempt next.
Because that’s how this works.
That’s how it always works.
Because that’s exactly how America is nowadays. We don’t compromise, it’s all or nothing, you’re either with us or against us and there is no more middle ground in America.
We take everything to extremes, most especially religion and politics.
And a ruling that says human life begins at conception if your employer says so, so long as it’s for religious reasons, opens the door to forms of corporate and governmental intrusion that we haven’t even begun to imagine.
The owners of Hobby Lobby say that they never intended to deny anyone access to birth control or to impose their religion on their employees, and maybe that’s so. But it is inevitable that others will.
And it has already begun.
On Tuesday the Supreme Court issued orders to the lower courts, requiring that they review six cases in light of Monday’s verdict. Each of those cases involved owners who objected to pregnancy related services mandated under the new federal health care law. Five of those six cases were brought by Catholic owners of closely held companies who specifically object to all forms of birth control on religious grounds.
Other cases will certainly follow. Some out of sincerely held religious beliefs, but many more by corporations looking to save a buck or stick it to President Obama and the Affordable Care Act under the convenient guise of a newly discovered piety. It there’s a loophole, business will exploit it, it’s inevitable.
Justice Ginsberg will no doubt be proven correct within short order.
America is not yet, not quite, a theocratic oligarchy.
This ruling isn’t the end of personal liberty or of women’s rights, not yet.
The decision does not give employers the power to impose their religion on employees, not directly anyway, not yet.
It’s not the end of the world, but you can damned well see it from here.