What we’re talking about when we talk about Hobby Lobby

I’ve spent much of the three days since the Hobby Lobby decision came down arguing with libertarians about healthcare. My extended social network contains very few outspoken religious conservatives, but is apparently replete with committed libertarians with varying degrees of writing fluency. While it would be easy to write a post listing the nonsensical arguments that have been mustered in defense of the Hobby Lobby decision (personal favorite: employer-provided health insurance is the same thing as employer-provided lunch), I think it’s far more interesting to probe the underlying assumptions, normative values and beliefs underlying these arguments.

In the interest of transparency, I’d like to present my own assumptions, normative values and beliefs as they necessarily underlie my critique of opposing arguments.

I believe that health care is a human right.

I also believe that the goal for society should be (among other things) to ensure equal access to quality healthcare for all humans in the society. This is a normative belief: what I believe *should* happen. Others, of course, may have different normative visions for society which will necessarily lead to different policy preferences. From what I have seen and read I have concluded that a universal single-payer system with some component of market competition is probably the most efficient, fair, and cost-effective way of achieving equitable access to healthcare. To my mind, disagreements about the minutia of regulating the current U.S. system (which, to be clear, comes closer to my ideal after the ACA than before it) are distractions from the main problem plaguing U.S. healthcare: access is inexorably tied to one’s employer (or one’s spouse’s employer, which puts unmarried workers at a disadvantage). This has several disadvantages: it creates a hierarchy of deservingness, where income inequality is compounded by unequal access to care; it burdens businesses with the responsibility of dealing with health insurers, which companies in other countries do not; and, since Hobby Lobby, it means that at least some employers can impose their religious beliefs on their employees.

The first wave of media coverage suggested that this only applied to those methods of contraception that the plaintiffs believed to be abortifacient: the so-called “morning after pill” and intra-uterine devices, but the Court quickly clarified that it intended the ruling to apply to all contraception — as long as the business owners sincerely believe the contraceptive method(s) in question to be against their religion — and only contraception, as religious objectors cannot (yet) be exempt from covering blood transfusions or vaccinations. This sets birth control apart from all other medical care as somehow less essential, and the people who use it less human, more Other.

Commenters have also been quick to point out that the ruling “only” applies to closely-held businesses. However, 90% of U.S. businesses are closely-held, employing 52% of the American workforce, as Mother Jones points out. Granted, many of these are small businesses that are not required to provide employees with health insurance, but the numbers are far greater than the “maybe 50 companies in the whole country” that one of my Facebook sparring partners claimed. And there are already signs that the religious right is hoping to expand the loophole even further.

The arguments mustered in support of the Hobby Lobby decision, at least in conversations that I’ve been part of, seem to fall under a few broad categories. Italics represent a direct quote.

This isn’t really a big deal

Employers weren’t required to cover contraception before 2013, so why is it such a big deal now?

It was a big deal. You just weren’t paying attention.

All that was done today was to rule that in a small % of cases the law infringed on the defined rights as per the constitution. You can say that it is sexist bullshit, and that is fine to believe, but this country was built to protect that sexist bullshit…and it is one of the few things that separate us from countries like Iran.

As noted above, this is not a small percentage of cases – it potentially applies to over half of the workforce. Moreover, protecting sexist bullshit is certainly not what separates us from Iran.

Contraception isn’t really healthcare

Saying that…from a public health perspective what does contraception offer? From a disease perspective only barrier methods reduce transmission rates, and since this is not “required”, then that is not the “focus”. The other use of contraception is to reduce pregnancy rates or to allow people to chose when to have a kid or not. The “choice” side does not provide a public health benefit, so you are left with 2 parts…one is the individual health in the case of people where a pregnancy would cause a health issue, and the second is the reduction in unwanted pregnancies. So…this really is about “population control” to some extent.

No, it’s really not. Birth control is an absolute requirement for women’s equal participation in the work force and in society. Moreover, pregnancy and childbirth are leading causes of mortality and morbidity for reproductive-age women in the United States and worldwide, especially in poor countries.

What is most galling to me is the not-always-so-implicit assumption that sex is either procreative or a risk behavior. Evidently the interests of monogamous couples who want to enjoy latex-free sex without risking pregnancy are frivolous for this crowd. This is obviously a normative moral judgment, and lots of people do believe that this is the case. Fine, they can live their values in their own lives. No one in the pro-contraception camp is saying that people ought to have monogamous, non-procreative sex if they don’t want to. We are saying that other people’s moral values should not impede us in our pursuit of happiness, which for many (most?) couples includes a fulfilling sex life.

You have to realize this has to be looked at from a “public health” perspective. The only way that the ACA holds together is that it was directed to increasing the public health.

“Increasing the public heath” includes contraceptive care, at least according to the overwhelming consensus of the medical profession.

There is no relationship between the employer’s and employees religion in this ruling, nor any “forcing” for them to do anything the employer requires. The absence of payment for a service is not the same as forcing them employee to abide by the religion of the employer.

The ruling is based on the employer’s religion and has a direct, material impact on employees. The ruling creates a relationship between the two where there was none before.

I’m absolutely certain that lunch and contraception are moral equivalents.

This one just leaves me speechless. Contraception and access to all food? Yes, absolutely. And in a context of famine or food insecurity, I can see the argument that food is more important than birth control (though high birthrates tend to compound food insecurity). But that is not what we are talking about here. We are talking about the availability of specific meals in a context where there are many options for obtaining food versus the availability of specific drugs and medical devices that must be used continuously to be effective. Before someone chimes in that Ella and Plan B are a one-time pill, that’s only true if you only have sex once. Moreover, any woman who’s taken the “morning after pill” will tell you that it’s an emergency back-up (hence the name…), and popping one every day is neither affordable ($50 per pill, on average) nor medically advisable, if only b/c of the nausea.

Contraception is easy to get, and all methods work the same

Nathalie…when you say contraception…do you mean condoms? Or “the pill”? Or an IUD/device? They are massively different in practice, but all perform the same basic function. Even the so called “morning after” pill is avail over the counter in most states (for those over 18). The problem is that everyone in the USA wants the “gold standard”, which yes requires a Dr’s note, etc. But sex is not a right, freedom of religion is. And yes, condoms are avail just about everywhere in the USA…so the argument that it is “not that easy” is not really true (I understand where you are coming from…but the argument is not valid).

Women want to make reproductive health decisions in consultation with their doctors and whomever else they choose to bring into the conversation (such as their partners, religious leaders, deities, etc). No one contraceptive method is right for all women or all couples, including condoms. Many contraceptives, notably the traditional hormonal birth control pill, have clinical uses beyond preventing pregnancy.

Moreover, from a public health perspective we know that condoms are typically used have a much higher failure rate than other methods of birth control. And from an individual rights perspective, many couples are not concerned about preventing STI transmission (monogamy) but are concerned about pregnancy. What sense does it make for them to use condoms, which are very effective at preventing disease transmission but less so at preventing pregnancy?

And finally, the whole point of classifying contraception as preventive care under the ACA is to exempt patients from having to pay for it on top of their premiums. Saying that people can spend their money on condoms or the morning after pill completely defeats the purpose of including it in health coverage in the first place — which goes back to the previous claim that contraception isn’t really healthcare.

… but at the same time, the specific method of birth control matters a great deal

What kind of birth control is important here because it is not all birth control. Only methods that prevent implantation of a fertilized egg. This evidently meets the “least restrictive means” test of strict scrutiny, the most stringent standard of judicial review used by United States courts.

Skipping over the incongruity of claiming that “all birth control is not birth control,” this claim flies in the face of both the legal and medical definitions of pregnancy as well as the medical consensus on how the IUD actually works. Let’s leave specific medical decisions to patients and their doctors, shall we?

Healthcare is a luxury

One Facebook sparring partner referred to including contraception in employer-sponsored health insurance as “companies providing a service to their employees.” Like a shuttle service from the metro to the office.

Anyone with half a brain understands that employer-sponsored health insurance is part of total compensation.

It is currently, yes. I am arguing that it shouldn’t be. It should be a tax-funded public service available to everyone, same as public schools, fire departments, the police, roads… As I noted on Facebook, I grew up in a country where everyone pays for everyone’s healthcare through taxes and government-funded healthcare, with the possibility to supplement that healthcare in the private insurance market if desired and affordable. It would be inconceivable for different people to have different healthcare options based on where they work. France, by the way, is consistently ranked among the top national healthcare systems by the World Health Organization.

Suppose a business owner decides to have a company cafeteria and provide “free” lunch to her employees. Obviously the meals provided are part of the total compensation package for those employees. But suppose the business owner is Muslim and decides that the cafeteria will only provide halal meals. Now what? I say there’s no problem. Anyone care to disagree? Is the business owner interfering with her employees right to choose their own lunches, and imposing her own religious belief on how she spends “their” money?

While intended as an analogy to the post-Hobby Lobby situation, this scenario actually supports making available products and services that all potential beneficiaries may not need or want. If an employer decides to include birth control in its employee health coverage, there is no requirement for a a given employee to use it. However, not including it deprives the employee of a healthcare option.

People have full agency over their economic lives

You’re free to work wherever you want in this country – people leave jobs for better benefit packages all the time…the government has no business dictating to a privately held company that they must do something that offends their beliefs. People can work somewhere else if they don’t like it.

This person is evidently not aware of the unemployment crisis in this country.

Yeah, but nobody said contraception had to be part of that…and it’s not like that’s not available elsewhere if people want it. @nathalie? So that people aren’t free to choose their healthcare provider either? Personally, I believe that people are smart enough to make their own decisions and should be free to do so. Btw, there’s no unemployment crisis in Texas, the economy’s booming, people should move where the jobs are…I did.

The ACA very clearly includes contraception coverage as part of preventive care. Most Americans only have their employer-sponsored plan (or their spouse’s, if they are married to someone who also has employer-sponsored coverage) as realistic options. Promoting relocation to Texas as a solution to the unemployment crisis is both naive and glib, and the Lone Star State is far from being a reproductive health wonderland.

National healthcare systems are a slippery slope to China-style population control

I don’t support things like “population control”, but you do realize that all of the nationalized healthcare systems do studies on this? They have to, because no matter how “ugly” it is as a thought, you have to look at all ways to solve certain situations. We have a major health issue in the (primarily) lower economic brackets in the USA. No one argues this, and contraception is touted as a solution to this. But people have done studies taking that even further…which is a bit scary to me lol.

Population control refers to coercive state policies (like China’s one-child policy). This is different from birth control or family planning, which refers to women and couples making decisions for themselves.

This person didn’t provide any evidence for his claim, so I’m skeptical that this is factual. I’m also not sure what problem affecting low-income Americans is solved by contraception, other than teen and other unwanted pregnancy — which can ONLY be prevented by contraception. Regardless, the fact that someone, somewhere conducted a study that may have been used to support morally dubious policies has no bearing on whether contraception is an essential part of preventive care for women.

The moral good of the market trumps human consequences

Healthcare is an important product. Americans deserve a free market.

Unlike the legions of Ayn Rand devotees out there, I believe that human consequences are more important than the religion of the free market. And further, I believe that the human rights of human beings are vastly more important than the free market rights of businesses.