The Hobby Lobby Decision Doesn’t Need To Be ‘Fixed’

Outrage is ubiquitous in Washington this month. Why? Because five men on the U.S. Supreme Court have declared that a few women might have to pay for their own birth control. It is “a horrible decision,” declared Senate Majority Leader Harry Reid, “certainly the worst in 25 years.” Reid plans to fast track legislation to reverse this latest foray in the war on women.

Washington Senator Patty Murray is so outraged that she has taken the lead in the effort to overturn the Supreme Court’s ruling in Burwell v. Hobby Lobby. In that case a 5-4 majority held that the Religious Freedom and Restoration Act protects closely held corporations from being required to provide their employees (through employer financed health insurance) certain types of birth control. “At a time when 99 percent of sexually active women in the U.S. have used birth control,” said Murray, “five justices decided last week that a CEO’s personal views can interfere with a woman’s access to this preventive health service.”

California Senator Barbara Boxer is equally outraged. “The court’s majority has decided that corporations are entitled to more rights than individual Americans,” said Boxer.

Both senators were echoing Justice Ruth Bader Ginsburg’s outrage. “[In this] decision of startling breadth … the exemption sought by Hobby Lobby … would deny legions of women who do not hold their employer’s beliefs access to contraceptive coverage that the ACA would otherwise secure,” wrote Ginsburg in a blistering dissent endorsed by her female compatriots on the court.

It is reported that at least 60 senators have joined in the outrage by agreeing to support the Protect Women’s Health from Corporate Interference Act that Senate Majority Leader Harry Reid promises to bring to a quick vote. The proposed legislation would effectively amend the Religious Freedom and Restoration Act and has been dubbed the “not my boss’s business act.”

Seldom has so much outrage arisen with so little in the way of reason to support it.

Contrary to Senator Murray and Justice Ginsburg, the Hobby Lobby ruling does not interfere with women’s access to contraceptives. Birth control pills are “easy to get” at a cost of “$15-50 a month” says the Planned Parenthood website. Other methods can be much less expensive. Many women spend more on Starbucks than they do on birth control.

But what about women who can’t afford a $4 cup of coffee – women for whom as much as $600 per year for birth control is a financial burden? Don’t they, and therefore all women, have a right to employer financed free birth control as Boxer and Ginsburg contend?

Certainly not as a constitutional matter, and we should hope not as a matter of public policy.

Every woman in America must budget for life expenses including such basics as housing, food, and transportation. Why should birth control be any different? Just as we subsidize basic needs for those of limited means, we can subsidize contraception and other health expenses. But surely Senators Murray and Boxer would not seriously contend that the government or their employer should pay (or have paid) for their housing, food, transport or birth control.

The irrational, if not feigned, outrage over Hobby Lobby is no doubt part and parcel of the irrationality of much of our national politics. As Senator Reid said, with his usual subtlety, anyone who opposes the proposed “fix” of the Hobby Lobby decision risks being “treated unfavorably come November with the elections.” But there are other than political explanations for the misplaced outrage.

One is that the Affordable Care Act, including the contraceptive mandate, represents a huge departure from the two-centuries old American tradition of negative rights, pursuant to which rights are guarantees against government intrusion, not guarantees of government benefits. Government, if it is willing and effectively restrained, need never compromise on negative rights. So-called positive rights, on the other hand, are only as good as the government’s (meaning taxpayers’) ability and willingness to meet the costs of promised benefits. If put to a vote, there are numerous basic needs most voters likely would put ahead of pills and condoms.