BY BARBARA SANTEE
On Nov. 26, 2013, the U.S. Supreme Court agreed to determine whether the Oklahoma-based merchandising giant, Hobby Lobby [a private, for-profit corporation], has the constitutional right under federal law to reject the birth-control mandate that is part of the Affordable Care Act. Under the ACA, a company must provide its workers with an insurance plan that meets minimum standards or else pay a fine. One of those standards is offering preventive reproductive health care for women; and that includes contraception.
The owner and founder of Hobby Lobby, David Green, is a Pentecostal Christian. Green is the son of a preacher and comes from a family of preachers. He claims to have built his business squarely on biblical principles and attributes his success to his faith in God. He has taken a public stance against the ACA because of its inclusion of a provision allowing access to the “morning-after” pill [more appropriately called emergency contraception or EC].
As with most other anti-abortion extremists, Green believes a person exists at conception and anything that interferes with the development of a fertilized egg after that point is an abortion and is equivalent to murder. Based on this belief, he objects to the “morning after” pill claiming that to include it and similar methods in his employees’ insurance coverage would violate his personal religious beliefs.
He further said paying for the ACA mandate forces him to be “morally complicit” in the “death of an embryo.” He has said he can’t pay for such insurance and still be a good Christian.
The 10th U.S. Circuit Court of Appeals agreed. [There have been contradictory rulings on the issue in a number of circuits, which is part of why the Supreme Court took the case.]
According to the Becket Fund for Religious Liberty, the total number of pro-Hobby Lobby briefs filed by the deadline actually outnumbered those supporting the government’s position by 2-1. Of 81 briefs filed, 56 backed Hobby Lobby. The attorneys general of Kansas and Oklahoma filed two of these, and Republican representatives filed their own briefs.
Sen. David Vitter, R-LA, summarized their reasoning quite well: “The ability to practice the faith we choose is one of our great constitutional rights. The Obama Administration’s contraceptive mandate stomps on that right.”
But that decision raises a larger question: Can any person who owns a private, for-profit company refuse to include in his employees’ insurance coverage any health-care procedure, drug or device that he is opposed to, based solely on his personal religious beliefs?
David Green is not an ordinary person with a run-of-the-mill gripe about big government suppressing the little guy. He is a very, very rich man, and certainly this David is not fighting Goliath. This David is Goliath.
What is unsettling is his fortune is used to grease the wheels of the growing evangelical movement in this country known as “Domionism.” According to Forbes Magazine, “Green and his family own 100% of Hobby Lobby [and numerous other businesses like Mardel’s Christian Stores], and he ranks No. 79 on the Forbes list of the 400 richest Americans, with an estimated net worth of $4.5 billion. Hobby Lobby’s cash spigot currently makes him the largest individual donor to evangelical causes in America.
Rather than try to cure malaria or fix the U.S. public school system, he’s turned his arts-and-crafts empire into a massive missionary organization, the equivalent of the largest church bake sale in the world. Hobby Lobby takes half of total pretax earnings and plunges it directly into a portfolio of evangelical ministries. Forbes estimates his lifetime giving at upwards of $500 million.”
His foundation bailed Oral Roberts University [a charismatic Christian school in Tulsa] out of debt to the tune of $110 million after Richard Roberts [Oral’s son] drove the university into a financial ditch. After the bailout, ORU’s board of regents was replaced with a 23-member board of trustees all initially named by the Green family, with David’s son and Hobby Lobby heir, Mart Green, as chairman.
The Dominionists hold to the belief that Christians alone are Biblically mandated to occupy all secular institutions until Christ returns [and, of course, there is no consensus on when that might be.] Dominion Theology or Dominionism is the idea that Christians should work toward either a nation governed by Christians or one governed by a conservative Christian understanding of biblical law. Domionism is simply a new bottle containing an old wine called theocracy. [The term “Dominion Theology” is derived from the King James Bible’s rendering of Genesis 1:28, the passage in which God grants humanity “dominion” over the Earth.]
With this background, it is obvious David Green is very serious about his religion and his lawsuit. But given all that, this is still an absurd lawsuit. I don’t care if the Greens believe the moon is made of green cheese, as long as their beliefs do not infringe on the basic human rights of others. And preventive reproductive health care and control of one’s body is a basic human right.
I am not a lawyer, but I would question the presumption that a business or corporation has the same religious rights or freedoms as those bestowed upon individual U.S. citizens by our Constitution and Bill of Rights. [However, the Supreme Court did find that a corporation can have freedom of speech so it wouldn’t surprise me at all what this Court will come up with considering its current makeup.] Common sense should tell us a corporation is not a human being and, therefore, cannot have a religion or religious beliefs. A few simple questions would serve to show the inconsistency in thinking otherwise.
The very purpose of forming a corporation in the first place is to develop an entity to shoulder the rights and responsibilities of a company in order to limit the personal legal exposure of individual officers and/or employees that may result from a company’s actions. In other words, its purpose is to shield the employees legally.
But simply because it assumes the legal responsibility for these employees does not imply that the religious rights of those individuals are in any way transferred to this entity.
A corporation can have a bank account, but it has no soul. It has no conscience. It cannot pray. And it certainly will not be going to Heaven. It is words on a piece of paper, period. It seems to me if that piece of paper is destroyed, the corporation ceases to legally exist.
To my way of thinking, it is ridiculous to claim such an entity has religious rights or freedoms protected by our Constitution.
Some 99% of women in this country [including women of various Christian and Roman Catholic religions] have used or are using birth control, and a decision in Hobby Lobby’s favor could have a profound impact on their access to reproductive health care. Although Hobby Lobby originally challenged the ACA because of its provision of Emergency Contraception [EC], the implications go far beyond that.
If the court supports Hobby Lobby, then it opens the door for any boss to be able to use the claim of religious freedom to remove coverage of any medical procedure from his employees’ health policies because it may offend his personal religious beliefs. Could this apply to any health service or procedure, not just to contraception?
As an implementation policy of the 2009 Affordable Health Care for America Act, the Department of Health and Human Services developed a mandate requiring all insurance policies to provide free contraceptives. In 2012, the GOP led an attempt to exempt insurance policies sponsored or paid for by religious institutions opposed to birth control on religious or moral grounds from the mandate to provide free contraceptive care. It was killed in the Democratically-led Senate.
Cecile Richards, the president of Planned Parenthood Federation of America, has said, “Here’s the bottom line: places of worship are exempt from the birth control benefits, and they always have been. Today’s regulations don’t expand the group of employers that are exempt. Instead, the regulations simplify the definition of who is exempt, and they map out how women at other religiously affiliated employers [like schools and hospitals] will get birth control at no cost. In short, your boss doesn’t get to decide whether you can have birth control. These regulations treat birth control like what it is – basic preventive health care that should be available, just like any other preventive care.”
We need only review the crazy quilt known as “religious diversity” in this country to see the nightmare this could become should Hobby Lobby win its lawsuit. For example, an anti-abortion Catholic boss could eliminate coverage for any type of contraception. Access to literally dozens of reproductive technologies and devices could be impacted: birth control pills, IUDs [intrauterine devices], long-term contraceptive shots, diaphragms and vaginal rings, condoms contraceptive jelly, tubal ligations, vasectomies, genetic counseling, elective sterilizations [tubal ligations and vasectomies], and in vitro fertilization. Tests to detect fetal anomalies may not be covered to prevent their use in helping a couple to decide to terminate a pregnancy. But the Catholic beliefs cover an even broader area beyond reproductive technology, like stem cell research and end-of-life issues like euthanasia.
However, the one type of “artificial” reproductive technology that has received tacit approval from the Vatican is the pill. No, not “that” pill, but rather the one for erectile dysfunction. But that approval comes with the admonition that it should be used only by married couples who are “open to life,” a euphemism for not using artificial birth control to prevent pregnancy. It is curious they believe preventing pregnancy using “natural” means [rhythm] is “open to life,” but preventing pregnancy using “artificial” means [the birth control pill] isn’t.
If the owner of a business were a Jehovah’s Witnesses, he/she may not want to pay for coverage for blood transfusions or any procedure where blood is exchanged, such as in organ transplants, unless it is a “bloodless” transplant [and there is such a thing nowadays].
Christian Scientists believe that spiritual reality is the only reality and that the material world is an illusion. Therefore, sickness and death are illusions caused by mistaken beliefs, and that the sick should be treated by a special form of prayer intended to correct those beliefs rather than by medicine. In the past, some individual Christian Scientists have avoided medical care altogether as well as vital vaccinations that have led to the death of a number of adherents and their children. Would a boss with these beliefs reject a program that covered life-saving medicines and vaccinations?
It is estimated that there are at least 310 different religions and denominations in the United States. How many of them have at least one belief [or more] that might cause a boss to object to one or more medical services, procedures, devices or medicines provided in a comprehensive insurance package? Numerous health problems can result from certain diseases or disorders, such as HIV/AIDS, alcoholism, drug addiction, smoking, venereal diseases, and so forth, that could fall into the forbidden territory of “sin” for one or more of these religions.
It is not a stretch to think that the curative therapies and medicines for these disorders [which may result from lifestyle] could be exempted from such a plan.
If enough employers are successful in challenging the ACA based on their personal religious convictions, we could end up with a patch-work program where some employees are being forced to adhere to their bosses’ religious beliefs on a very personal matter rather than being free to follow the dictates of their own consciences, certainly not a consequence that could be considered constitutional.
These few examples will give an idea of the absurdity of letting an employer like Green make the decision about which parts of the ACA he would include in the insurance coverage for his employees based on his personal religious beliefs.
However, there is an overriding issue that trumps all of these attempts at political sabotage of the ACA or the possibility of selective coverage based on religious beliefs.
At its core, this discussion is about basic economic justice and human rights.
Either a woman is a complete human being with the ability to make her own decisions about how to control her own life or she isn’t.
The settlers of this country brought more than smallpox with them. They also brought something nearly as bad for women – English common law – and from the inception of this country, discrimination was written into our founding documents.
Citizenship was given to white, propertied males leaving out at a minimum at least half of the population. Women, slaves, indentured servants, and Native Americans were all excluded from the privileges of citizenship.
Women were pushed to the sidelines as dependents of men, without the power to bring suit, make contracts, own property, or vote. They were second-class citizens who were not given the power to make their own decisions about their lives.
Women had to depend on men or the male-dominated power structure to validate their legitimacy, legal and otherwise. For most of our country’s history, they were expected to restrict their sphere of interest to the home and the family.
They were not encouraged to obtain a real education or pursue a professional career. They could not hold a job with the government. They could not own property. They could not inherit. They could not sign a contract. They could not have custody of their children should their husband divorce them, and they couldn’t divorce their husbands. They were not permitted to do an entire range of things without their husband’s permission or governmental oversight.
This was particularly true in the area of reproductive issues. In her first attempts to try to bring contraceptive knowledge to women, Margaret Sanger [the founder of Planned Parenthood] was arrested three times in the early 1900s and endured years of harassment and social rejection, but she persisted and eventually played a large role in bringing the birth control pill to the market.
Until the Roe v. Wade decision in 1973 [and even afterward], in order to have an abortion to save a woman’s life, health or for other compelling reasons, different states had different requirements; but all of them permitted practically everyone in the community but the woman herself to make the decision about her reproductive choices.
Depending on a state’s law, the power of that decision was given to a doctor [or perhaps two doctors], a psychiatrist, a psychologist, a therapist, a minister, a social worker, a counselor, a husband, a parent [or both parents], a step-parent, a foster-parent, a guardian, or a judge [judicial bypass for teens and women who were considered mentally incompetent or suicidal], and so forth.
It seems the only person who was not permitted to make that very personal decision for the woman was the woman herself.
So now we’ve come full-circle, and we are back again at square one. It is 2014, and women are still depending on someone else [a boss] to decide if she will receive benefits for birth control or not.
The bottom line is this. The ACA was not implemented to rubber-stamp the religious beliefs of bosses. It was established to provide good preventive and curative health care to employees, regardless of their religious beliefs, and that includes all reproductive health care options. The Supreme Court must reject Hobby Lobby’s claims. Any other decision by the U.S. Supreme Court in this case will be a travesty of justice and an insult to every woman in this country.
As in 1848 with the right to vote, in 1973 with the Roe decision, and now in 2014 with the Affordable Care Act, the most fundamental questions of all still remains, “Who Decides?”
– Dr. Barbara Santee is a writer on women’s reproductive health issues and a long-time pro-choice activist who lives in Tulsa. She was the executive director of NARAL ProChoice Oklahoma for ten years, retiring in 2005. “Who Decides?” has been a part of the NARAL Pro-Choice America logo for years and is just as relevant today as it was 20 years ago.