Hobby Lobby? I’m Done with You!

July 1, 2014

“Where do I begin … ?” Let’s start with the fact that, had the alleged model for the protagonist in Love Story, Albert Gore, Jr., been inaugurated in 2001 and re-elected in 2004, the Supreme Court would be issuing very different decisions. Elections matter!

That said, the Republic will survive Hobby Lobby and much of the rest of the Court’s mischief during the recent past. Certainly, in many ways the Court has made life in these United States worse for many people, but we’re strong and we will survive.

Lots and lots of commentary on this decision, and it’s all over the map. Frankly, I found much of it not very helpful, although I do commend the SCOTUSblog, “fulmination free” coverage. And for more on the back story, check Hobby Lobby and the Pill and Hobby Lobby Redux, my writings from the period just before and after the oral argument.

I don’t have much to say about the opinions, or the legal analysis. My college logic professor, viewing us from his final home, must find amusing Justice Alito’s notion that because corporations only speak through people, they have the right to express the beliefs of those people. (He offers other rationales, but this one was fallacious.) On the rest of the opinion, I don’t have the chops to bring it down to something manageable, and I’m not sure there’s value in that approach. I do, however, have a couple of 36,000 foot thoughts.

Leaving aside the Court’s seeming ability to always find outcomes that ignore a woman’s right to reproductive freedom, we live in a world in which the rights of individuals—for sure, the right sort, “our kind,”—have been empowered in silly ways. This contraception battle? Nonsense for Hobby Lobby, as the share of its insurance premium that pays for contraceptive coverage appears nowhere on its bill, and surely represents pennies on the hundreds. But, in the land of “you can’t make me,” “you’re not the boss of me,” and “I should only pay for what I use,” we get Hobby Lobby.

The mandate in the Affordable Care Act? It survived, barely, but it affected the “right people” not at all. The loudest ACA opponents were seniors, government employees, and the wealthy. All insured, and all are now benefiting from lower costs attendant to having more compensated care and a smaller number of ERs which serve as primary care clinics. But, “no one’s telling ME I have to do anything.”

So, I think first that we’re seeing a lot of rebellion against government as an institution. I suspect it grows out of tough times, inequality, failure to deliver on the American dream, and fear, lots and lots of fear. And the second thought?

When the Court monkeyed with ACA, instead of deferring to the Congressional wisdom on which it relied in Hobby Lobby, it made a hash out of health care policy, leaving out of the health care system millions of really poor people in states controlled by Republicans. And so it may be with Hobby Lobby. Justice Alito represented, repeatedly, that the decision is limited, and will not apply to other health conditions or situations. We’ll see. Already, there are cases about whether corporations will have to use the government form to seek the exemption from the contraception requirement. Lyle Denniston has an excellent, readable analysis here. (If this rationale goes anywhere, it’ll reside in the pantheon of “form over substance” nonsense.)

So we’re living in a time in which the right of the right sort of individual gets elevated, and the Supreme Court decides when and just how wise Congress was. If these are the “interesting times” to which the Chinese refer in their proverb, I’m rethinking my criticism of the branch of government that has a summer vacation for July, August, and September. Go, justices, go, and if you’re not back in town by the first Monday in October, that’ll be just fine and dandy!

P.S. Remember:  Elections matter! If you’re one of my many readers who found the 2013-4 Term dissatisfying, vote and urge your friends to vote. The Senate matters greatly, really!

P.P.S. If you’d like boiling blood, read Hobby Lobby Invested in Numerous Abortion and Contraception Products While Claiming Religious Objection by Rick Ungar, posted on April 1, 2014 at Forbes.com.


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