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

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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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.

A second explanation for the irrational outrage is that we have lost all understanding of what insurance is. The entire health care reform debate was conducted in the language of insurance when what we were really talking about was who pays. Insurance is about everyone paying a little to spread the sometimes high costs of unpredictable risks. The ACA is about shifting the predictable costs of daily life.

For example, every driver faces a small risk of serious accident. Knowing that the costs of such an accident could be financially ruinous, most drivers choose to share in the costs (by paying premiums) of other people’s accidents with the knowledge that, in the unlikely event of a serious accident, other people (through their premiums) have done the same for them. But there is no reason, except charity, anyone will agree to share in other people’s unavoidable and predictable costs of daily life.

In other words, while most Americans, except those with religious or moral objections, will happily share in the costs of a poor women’s birth control, few would see any reason to pay for contraceptives for Senators Murray, Boxer, or the vast majority of American women. Paying for their own birth control will neither deny them access nor violate their rights. You might say it is an outrage to contend otherwise.