Thursday, July 3, 2014

Hobby Lobby and Religious Conscience: Two Reasons to Doubt the Freedom of Religion Argument

There is much about the recent Hobby Lobby ruling that I'm not qualified to comment on, but I have some concerns about a key claim in this case--namely, that the business owners' freedom of religious conscience offers grounds for justifying the Supreme Court's decision. There are two problems, in my view--although my thinking on both is still evolving. The first strikes me as less serious than the second.

1. Religious conscience needs to be responsive to matters of fact.

Suppose Pastor Bob refuses to officiate at the wedding of Pat and Alex on the grounds that he is religiously opposed to same sex marriage. If, as a matter of fact, Pat and Alex are a heterosexual couple, then no court of law would treat his religious opposition to same-sex marriage as a legitimate basis for refusing to marry them. And if Bob sputters that it is a matter of religious conviction that this man and woman are in fact both men--well, I doubt that will fly if the facts don't line up with the conviction.

In other words, there is the moral premise of Bob's argument--which is derived from his religious convictions. And then there is the factual one--which isn't a matter of religious belief and shouldn't be.

In the Hobby Lobby case, there is the the moral premise: The rather complex conviction that a form of contraception which operates by preventing the implantation of a fertilized egg is wrong because fertilized eggs are persons who are thereby being deprived of their lives. And then there's the factual claim that the four forms of contraception at issue function in this way.

But it does not appear that, as a matter of fact, the four forms of contraception operate in this way. Three (the two "morning after" pills and the hormone-releasing IUD) operate primarily to prevent fertilization, while the fourth (the copper IUD) kills sperm cells. With respect to the two "morning after pills," extensive research indicates that these do not prevent implantation in the cases where they fail in their primary function.

It may be true, however, that when the IUD's fail in their primary function and conception happens anyway, the fertilized egg is considerably less likely to implant than it would be in the absence of the contraceptive. Absent any contraceptive, on average only 40% of fertilized eggs implant. IUD's may lower this percentage considerably.

But in that case, the effect on implantation appears to be a side-effect of the contraceptive's use. Given the standard 40% success rate for implantation, someone who is trying to get pregnant is a greater threat to the lives of fertilized eggs than an IUD-user--since it is likely that the IUD-user will never flush out a fertilized egg because the IUD will prevent the egg from being fertilized in the first place. But I doubt Hobby Lobby is going to start condemning couples attempting to conceive of slaughtering innocent babies wholesale. After all, the deaths of more than half of the zygotes they produce is a side-effect of the effort to become pregnant, not the aim of it.

The moral status of a medicine's side-effects is different from the moral status of its primary intended effect. Hobby Lobby could argue that any medication which substantially increases the probability that fertilized eggs won't implant even as a side effect of its use violates their religious conscience. But if their religious faith entails commitment to this broader ethical principle, consistency would call for more sweeping employer involvement in regulating the health-care options covered by a health plan. For all we know, numerous medications prescribed for a range of purposes have an impact on implantation chances. (At least the IUD makes it unlikely that this side-effect will ever happen, since it is highly effective at preventing the conditions under which such a side-effect will arise.)

So: If Hobby Lobby isn't interested in sweeping involvement in health-care choices, then it doesn't seem as if they really are, as a matter of religious conscience, committed to this broader ethical principle after all. And if what they're committed to is the narrower one, their religious conscience at best calls for condemning those who use IUD's in part to achieve what is ordinarily a side-effect (as in when someone takes a medicine with psychotropic side-effects for the sake of those side-effects). If their religious conscience really does push them towards the broader principle, then the substance of their religious conscience calls for a level of intrusion into health care options that is far more burdensome on the insured than what the Supreme Court was considering--leading to a different set of worries about the ruling.

Of course, all of this is premised on the facts about the four contraceptives being as described above--and while I am relying on what I've read about them, I'm not an expert. So this line of concern hinges on what the facts are--but that's part of my point here. This can't and shouldn't be seen as merely a matter of religious conscience. If the facts don't fall in the right way, the principles derived from religious conscience don't apply. And there is reason to think this is the case here.

There is, however, a deeper concern about the relevance of religious conscience that I think may be more decisive.

2. A health care plan is a form of compensation that gives employees a means of paying for their health care--and in this way is like a paycheck.

Here's the concern in a nutshell: Hobby Lobby sees its religious conscience as compromised when it's required to offer a health care plan that can be used to pay for certain types of contraceptives. But the paycheck that Hobby Lobby pays out to each of its employees can be used to pay for those same types of contraceptives. If the latter doesn't compromise Hobby Lobby's religious conscience, why should the former?

A health insurance policy is sometimes viewed as a product--but no one wants a health insurance policy for its own sake. They want it for the sake of paying for the healthcare products and services they many need. Hence, it is more natural to see a healthcare policy as a way to pay for a certain class of products. Insofar as it is the latter, offering a healthcare policy that covers the normal range of healthcare products is like offering a salary in a form that can be used to buy the normal range of things money can buy.

When Hobby Lobby pays its employees, they are providing them with the means to buy porn. They are providing them with the means to visit Nevada prostitutes. Money, in our society, has by social agreement been invested with a very broad purchasing power. A normal healthcare policy, by contrast, can be used to buy far fewer of the things that offend the values of Hobby Lobby's owners. That's true even if the policy covers morning after pills and IUD's.

Does the fact that our monetary system empowers money-possessors to buy porn entail that Hobby Lobby's conscience should be opposed to paying its employees with money? I suspect Hobby Lobby would say no. They could explain that the decision about what to do with the money Hobby Lobby gives them lies with the employee, not with Hobby Lobby--and if the employee decides to use it on porn, that's not Hobby Lobby's fault, even if Hobby Lobby provided the money that was used for this purpose. So Hobby Lobby hasn't done anything wrong. The company hasn't been forced to violate its corporate conscience.

That, of course, is exactly what Hobby Lobby should say about the money they give to their employees. But if so, why shouldn't they say exactly the same thing about the health insurance policies they give to their employees?

Unless a sufficiently potent distinction can be made here, it becomes hard to justify the claim that Hobby Lobby's religious conscience is being violated by offering a broad health insurance policy covering the usual range of health care products and services. If their conscience is being violated, then they should be complaining about the violation of religious conscience that comes from offering a paycheck in a form that can be used to buy the usual range of things (including porn and divorce lawyers and emergency contraceptives) that our society makes available for purchase.

And if this isn't about religious conscience, it becomes instead about the desire to use their position as the provider of health insurance to constrain employee choices. Instead of this being about Hobby Lobby's desires to follow its religious values, it becomes about Hobby Lobby's desire to use its position to impose its religious values on others--to make their employees act according to the values of Hobby Lobby's owners, by controlling what the compensation provided to employees can be used to do.

And if this sort of control is deemed acceptable, what follows? Will it become legitimate for employers to pay their employees with cash cards that can only be used to purchase employer-approved goods and services?

In the end, the Hobby Lobby case is about the clash between the liberty of businesses and that of individual employees. When companies do whatever they please, their choices can sometimes restrict the options and freedoms of those who work for them. In a world where workers largely depend on business owners for their livelihoods, workers are susceptible to exploitation and undue control when owner decisions about how to run their business are unregulated. Business owners should have considerable freedom to decide how their businesses are to be run, of course. But if the exercise of the power they have as owners is wholly unregulated, it is individuals who pay the price--in terms of fewer choices and opportunities.

The Hobby Lobby decision strikes me as ultimately being about this balance between the liberty and welfare of business owners on the one hand and workers on the other. And the Supreme Court decided in favor of business owners in a way that, as I see it, sets a very disturbing precedent.


  1. Eric-

    I agree with your second point, but not entirely with your first point. The pastor is a free agent, and should be able to refuse to marry anyone or thing he wishes, for whatever reason. His ceremonies are not creatures of the state, or subject to the regulation the state puts on corporations in return for their release of liability and other institutional benefits.

    The pastor's discrimination may be factually based or not.. that is a moral issue, perhaps, but not a legal one. The parishoners can join a different church. The problem of the Hobby Lobby case is that its employees are held to some degree against their will, insofar as other jobs are hard to get, which is true by design in our system, with employers given so much power in financial and other terms (secrecy of contract terms, collusion against poaching, union busting, austerity as macroeconomic policy, etc.) This makes the exercise of discrimination in this patently non-business related issue (factual or not in its basis) so appalling and makes its acceptance by the court even more so.

    1. I agree with what you say here--including your take on the pastor.

      The point of the pastor case was not to make a close analogy to the Hobby Lobby case (there are numerous differences) but simply to clarify that a religious conscience objection to engaging in some activity, A, typically has two premises: a moral premise ("For religious reasons I am opposed to engaging in any activity that falls under the description D") and a factual one ("Activity A falls under the description D"). If the factual premise is false, then you simply lack the claimed religious conscious basis for refusing to do A (even if there might be other reasons why you have a right to refuse).

      Thanks for the chance to clarify this, since it may have been less than clear in the post.

  2. I have a question about the second point. Before the ACA, healthcare insurance was largely in the hands of employers who could as a result of this ruling impose their religious views on employees. In the era of exchanges, I'm not sure the calculus applies. Just wondering what that would do for your calculus.