Let Freedom Ring!

by John Holbo on July 4, 2014

Well, that didn’t take long. It’s been 72 hours, and the Supremes have flipped from arguing that the administration could have been more accommodating to signing a temporary injunction on behalf of a plaintiff, refusing the terms of the accommodation. Kevin Drum has it about right: “It’s worth noting that quite aside from whether you agree with the Hobby Lobby decision, this is shameful behavior from the conservatives on the court. As near as I can tell, they’re now playing PR games worthy of a seasoned politico, deliberately releasing a seemingly narrow opinion in order to generate a certain kind of coverage, and then following it up later in the sure knowledge that its “revisions” won’t get nearly as much attention.”

Then again, as PR, this seems doomed to backfire generally. Whatever one makes of the legalities, there’s no missing the spirit in which these decisions are being celebrated on the right. It’s hard to believe many women voters will be inclined to say ‘well, if religious liberty means my boss gets to interfere with me getting what the law says I have a right to, in ways that feel very private and non-work-related, without that technically being a violation of my rights, I guess that’s alright. I guess my boss is exercising his rights, even though it feels like I’m taking a little symbolic walk of shame here!’ Conservatives are working hard to console themselves for recent cultural and legislative losses by building a relatively small, largely symbolic patriarchal dominance display out of ‘religious liberty’. But I’m guessing most women voters are not interested in playing the role conservatives want to cast them in here – i.e. being the loose woman rightfully, if only symbolically, scourged by the spiritually superior employer, all in the name of ‘liberty’. There is no way to make this little morality play palatable to conservatives without making it unpalatable to most women. A lot of conservatives are taking a ‘what’s the big deal!’ line, while at the same time making it clear that, to them, this is a big deal. It’s really not realistic to suppose women will be more immune to the symbolism of the drama than conservatives themselves, however it plays out in terms of provision of birth control to women who need it.

Happy 4th of July! Freedom is a great thing, if only we could agree what it is!

UPDATE: it occurs to me someone is going to complain that I’m cruelly indifferent to the real harm done to some poor women by these recent decisions. In fact, I’m aware of that. It’s really bad and I hope some workaround is found. It’s not clear one will be, which is a damn shame. Nevertheless, the point of the post is that people are getting exercised by the symbolism of the victory, one way or the other. There is no possible symbolism, along these lines, that will please conservatives, that won’t displease most women, because conservatives are in the market for a way to dominate women, in as public a way as possible, while reassuring themselves this is all just ‘liberty’. And most women aren’t in the market for some way to be publicly subordinated, under cover of ‘liberty’, I’ll bet. In the best case, it will just be symbolic. Who has to sign what piece of paper, etc., rather than women actually not getting certain goods the law promised them. But the very thing that makes it acceptable to conservatives, even if it’s symbolic, is going to make it unacceptable to women, even if it’s symbolic. So: good luck with that outreach to women, conservatives.

{ 106 comments }

1

Doctor Science 07.04.14 at 4:47 pm

Note that the displeased women include the ones on the Supreme Court:

“Those who are bound by our decisions usually believe they can take us at our word,” Justice Sotomayor wrote. “Not so today.”

The court’s action, she added, even “undermines confidence in this institution.”

She is *seriously* pissed, and rightly so.

2

Lee A. Arnold 07.04.14 at 4:54 pm

John I think you are right, so the arena of contention will move to the new formulation of Foxified slanguage, to make uneducated women believe that this is not a big deal.

Let the Propaganda-Mills Ring!

3

afeman 07.04.14 at 4:54 pm

I suspect one salient thing will be how many women rationalize their acceptance of the decision, the shameful behavior, the PR, all of it.

4

Lee A. Arnold 07.04.14 at 4:58 pm

Well I think its time for the girls to take charge, frankly. The conduct of Western civilization by the males has been a shameful, frightening cock-up, to borrow a fun phrase from the Brits.

5

The Raven 07.04.14 at 5:19 pm

Yeah. The conservatives have women on their–have gotten many people on their side–because they can persuade many people that their oppressive laws and policies only apply to those people. But to this Court, it seems, every woman is one of those people. I wonder what everywoman will do. I wonder how women will react if their sisters and daughters start dying of illegal abortions again. I wonder how they will react when women are charged with crimes for having them.

New party coming in 9, 8, 7, 6 years…

6

Lee A. Arnold 07.04.14 at 5:44 pm

The thing to do it to get ‘em out to vote in the next election. Luckily this decision is four months in advance, the usual timespan required for an idea to sink into the sodden noggins of the ill-informed and harried. Thus to counteract it, a propaganda firefight from the Right is on the sudden horizon. But I fear that as usual, the lazy Democratic left (such as it is) will not be up to the challenge.

7

ethanc 07.04.14 at 6:02 pm

Tear down the preclearance provision of the VRA, and southern states put their racism on display for all to see. Carve out a states’ rights exemption to the ACA, and watch (mainly) southern states leave millions of poor people without health care. Now let employers decide who gets contraception, so we can watch how much the right really hates women.

John Roberts is a deep-cover Naderite-Leninist disruptionist, heightening the contradictions to usher in the New Socialist Utopia. Good work, tovarishch. Good work.

8

parsimon 07.04.14 at 6:37 pm

John Holbo, I think your post is, or should be, a preliminary excursion into the issue at hand. This really isn’t just about women’s rights: it’s about religious liberty claims. The Court’s Wheaton College order signals that it’s willing to entertain the notion that a religious objection to some law or other is enough to exempt from the law not just the religious objector, but also anyone who might take that objector’s place.

9

Wonks Anonymous 07.04.14 at 7:07 pm

What I find odd is that Breyer signed on to the decision, even though he dissented in Hobby Lobby. Scalia signed on to the result, but not the reasoning. But for the result, it was all the men on one side, all the women on the other.

10

roy belmont 07.04.14 at 7:08 pm

“the spirit in which these decisions are being celebrated”

Couple ways to interpret that phrase, innit?
Years of watching non-believers insist that believers are just chocolate to their vanilla, yet somehow the believers just won’t go along with that, seeing it as a moral binary with no middle ground. It’s frustrating to see the constant recursive of logical superiority foundering on the rocks of delusional certainty. Like waves of common sense washing up on the beach of absurdity.
Divide and conquer’s the name of the overall strategy, with some preparation for serious meltdown, and consequent security issues at the compound perimeter.
P.R. sophisticates laying to a delusional base impervious to reason, and reasonable arguments end up stuck to the fence like plastic bags, fluttering in the winds of change.
People who sincerely believe in Judeo-Christian hierarchies are being played, and the people who don’t believe are being played against them.
There is no outcome of that conflict that works for the human good. Though in my magnanimity I’ll extend a kind of mutant humanity to the puppet-masters that are directing this End Times dog and pony show.
My heart to Sotomayor and Ginsburg, but seriously, every bit of news that the world is effectively catching on fire goes right to the foundations of apocalyptic confidence. Which proceeds from patriarchal misogyny and racxial chauvinism. And goes right back into the Bible. If you attack that you’re at best a dupe of evil.
And the idea that patience, anticipating a public wake-up call at the inadequacies of conservative world-views and policies, is what’s called for?
Dudes, Obama didn’t deliver, can’t, won’t, and Congress is on its knees. Nobody else in that system’s got a chance now to do anything but sacrifice themselves, publicly, like a rat drawing arrows on the walls of the laboratory maze, before it’s plucked out and dissected. To improve the algorithms of control.
-
Independence Day’s celebrated by most Americans as the achievement of their freedom, but of course it isn’t that.
It’s a celebration of the declaration, the beginning of the struggle not the end of it.
The “Fuck You!” to England that began the War of Independence, which was long and horrifically bloody, and its outcome in doubt right up to the British surrender.
Pleas to the Parliament, petitions of redress, yeah okay, tried that. But it was fighting that got us independence, not politics.

11

John Holbo 07.04.14 at 7:26 pm

“This really isn’t just about women’s rights: it’s about religious liberty claims.”

On the surface, you are right, of course. The problem is: in principle (as the Ginsburg dissent says) the Hobby Lobby ruling is quite breathtaking in terms of potential implications. People can have religious beliefs about lots of stuff. I’m quite certain that there are some people who sincerely object to literally everything Obama has done on conscientious religious grounds. He’s a godless liberal and should never have been elected President in the first place. They have the right to believe that and I don’t really doubt their sincerity. The question is: can anyone nullify all laws they take a dislike to, just so long as they get worked up about it in a church-y way? Now obviously that’s absurdly broad. It’s not less absurd to say that that religious liberty is only about uppity broads, i.e. ladysex-related issues. But the latter is a bit less absurd in terms of practical havoc wreaked. ‘It has to be about ladysex’ does seem to be on its way to being the tacit limiting principle for the application of religious liberty claims. Women are not going to fail to notice if this is how the issue shapes up. (And if not this way, then how? General havok, with exemptions busting out all over?) Women will see their sexual autonomy being (at least symbolically) sacrificed as a kind of cultural sop to the wounded sensibilities of conservatives. If it turns out to be largely symbolic, with the government continually finding ‘less restrictive’ workarounds, then it won’t be such a practical problem, but I don’t predict that labeling this ‘equal liberty’ will be enough to reconcile women to the symbolism of it all.

I am simplifying a bit. Even giving it the broadest possible reading, the Supreme’s Hobby Lobby decision wouldn’t just give anyone the right to nullify anything. The state still has legitimate interests, but in a lot of cases, those interests could, strictly, be satisfied in some potentially rather rube goldberg-y governmental way that was less burdensome to religious individuals. You have a religious problem with black people eating in your restaurant, or with equal pay for women? The government could have a fleet of mini-drones that deliver sandwiches to anyone refused service, so they don’t go hungry. And it could make up the shortfall in pay for women out of some general fund. Neither of these sorts of cases is going to get a hearing from the court, of course. But why not? Religious liberty! Again, saying ‘because there’s no ladysex involved’ will never do. But, implicitly, something WILL do the work of keeping things from getting totally out of hand, when it comes to limiting religious liberty claims by corporations. It remains to be seen what that thing will be if it’s NOT the ladysex thing. And if it is ladysex, the ladies are likely to notice.

12

Dan Nexon 07.04.14 at 7:27 pm

SCOTUS Calvinball. Kind of like Bush v. Gore.

13

MPAVictoria 07.04.14 at 7:45 pm

“SCOTUS Calvinball. Kind of like Bush v. Gore.”

Exactly. The rules are whatever we say they are at this point in time and they are subject to change without notice.

14

Ben Alpers 07.04.14 at 7:46 pm

Freedom’s just another word for nothing left to lose…or at least that’s how a majority of the Supreme Court is hoping that women will understand it.

This is all about “religious liberty” in precisely the same way that the Civil War was about “states’ rights.”

15

john in california 07.04.14 at 9:15 pm

I am a man so maybe that’s why the first thing that the hobby lobby decision brings to mind isn’t the women’s issue or who’s religious freedom counts but rather the this court again affirming an absolutist view of employer power. A “closely held belief” is so broad that it may allow an employer to use, or threaten to use any excuse to intimidate or fire. And there will always be conservative deep pockets to defend employers while an employee will be on his own.

16

JanieM 07.04.14 at 9:41 pm

Article lead-in on cnn.com right now: The decision to give an evangelical college a temporary pass on providing contraception insurance under Obamacare set off unusually strident dissent.

Gee, what adjective would have replaced “strident” if the dissenters had been male?

17

JHW 07.04.14 at 10:45 pm

The premise of this post is wrong. The Supreme Court order does not prevent the government from guaranteeing contraception to these women. It probably just requires that the government tinker with the way the accommodation works. See Tom Goldstein here: http://www.scotusblog.com/2014/07/commentary-why-i-dont-think-the-courts-wheaton-college-decision-rests-on-any-misunderstanding-of-the-law/

18

roger gathmann 07.04.14 at 10:48 pm

Sadly, it is hard to see what the obvious victims of these disgusting decisions can do about it. They are certainly being rooked at the ballot box – most of the conservative judges could have been blocked the way the GOP blocks judges, by the panoply of obstructionist steps given senators to do such things, but unfortunately, the Dems only care during election years about the composition of the court. Besides Thomas, you have Scalia – unanimously confirmed by the Senate – you have Roberts – confirmed 78-22 – you have Kennedy 97-0 and so on.
I don’t doubt that the Senate will flip Republican this election, unless they really really fuck up, and the House will remain Republican. Essentially, if there is a vacancy, we will see what a riled up majority that means it does to a presidential nomination it objects to ideologically. The dems will decry it, and – if there is another Republican president, which I have a hard time seeing – will make their words acts by seeking compromises and soothing statements from the nominee to be.

At root, the problem is the power that the supreme court has period. I would love to see some constitutional amendment that would simply get them out of the business of telling us what is and is not constitutional – this was, to be all originalist about it, never the intent. Other countries have constitutional committees that rule on legislation as it is being considered, and that is that. We need a court that is simply a court of last appeal, not a third wheel on the gov.

19

John Holbo 07.04.14 at 11:21 pm

“The premise of this post is wrong. The Supreme Court order does not prevent the government from guaranteeing contraception to these women.”

You misread the post, JHW. I’m not assuming any such thing.

20

emmryss 07.04.14 at 11:55 pm

“…religious liberty claims by corporations.” Wow. I mean, I don’t go to church myself, but those of you that do — how many corporations have you seen filling up the pews? What was that saying — “I’ll believe corporations are people when Texas executes one.”? On the other hand, it does seem like they’re the only ones get all their prayers answered.

21

JHW 07.04.14 at 11:57 pm

John Holbo: Your post rests on the assumption that the Wheaton College injunction somehow represents a broad expansion of the Hobby Lobby ruling. It is no such thing. It is narrow in exactly the same way Hobby Lobby is narrow: it blocks one particular route the government took to applying the contraceptive mandate to religious employers, while expressly leaving open others. It is not even clear this helps Wheaton College much, since the new notice it is required to provide to the government is likely to end up having the same legal effect as the form it conscientiously objected to.

Justice Sotomayor in dissent raises some legitimate logistical worries about whether the Court’s solution will actually work properly in this instance, and the potential for the Court to mess up these kinds of rulings is a pretty good reason for it to stay out of this kind of administrative tinkering (which is a point she also makes). But I don’t understand the suggestion that this represents an abandonment of the narrowness of Hobby Lobby. The accommodation is still intact, the government just has to alter how it works.

22

Collin Street 07.05.14 at 12:17 am

> It is narrow in exactly the same way Hobby Lobby is narrow

One thing is one thing. Two things is a set, a pattern. How big a set? We don’t know, but not a-priori two, you see. It can’t be narrow in “exactly the same way” as hobby lobby is narrow, in the same way that Gus Grissom can’t be “the first american in space in exactly the same way Alan Shepard was.”

23

Hector_St_Clare 07.05.14 at 12:45 am

John Holbo,

Actually, I suspect most women are perfectly fine taking on a subordinate role .

24

Alan White 07.05.14 at 12:49 am

John (if I may) isn’t the point that the MSCOTUS (M-ale) now assert that religious freedom should be interpreted as holding that any deep-felt belief trumps what have been taken till-now to be reasonable assessments of what constututes a substantial burden against the exercise of that freedom? Doesn’t the ruling here expand what a substantial burden is? If that’s right, it’s frightening.

25

JanieM 07.05.14 at 12:52 am

Per Alan White: Yeah, any minute now I expect to hear about employers citing religious beliefs for not wanting to give benefits to employees married to same-sex spouses.

I’ve been wondering how they’d start to turn around or slow recent progress.

26

Chris Grant 07.05.14 at 1:47 am

“Gee, what adjective would have replaced ‘strident’ if the dissenters had been male?”

Google indicates that Scalia’s dissents are often called “strident”. What are you looking for here?

27

godoggo 07.05.14 at 1:51 am

Hector, why do you say that? Please explain.

28

shah8 07.05.14 at 2:54 am

come on, you don’t know him? Hector’s probably pretty happy about all of this.

29

godoggo 07.05.14 at 2:56 am

Is that right, Hector?

30

Main Street Muse 07.05.14 at 3:01 am

“The decision to give an evangelical college a temporary pass on providing contraception insurance under Obamacare set off unusually strident dissent.”

First of all, CNN is dreadful.

Second, it is my understanding that SCOTUS is letting Wheaton take a pass, not just on providing contraception, but providing paperwork that indicates their religious orientation, thus enabling the gov’t-workaround. What Wheaton is saying, if I understand it correctly, is that they don’t even want to have their employees have access to the workaround – i.e. no birth control at all for those who work at Wheaton. SCOTUS is moving us ever closer to a religious state. Mind-boggling.

Happy 4th of July. Have fun celebrating those freedoms people have died for. Looks like those freedoms are being now strangled to death.

31

Ronan(rf) 07.05.14 at 3:04 am

Hector is well known for his support of the whole plethora of leftist policy programs, from the second vatican council to feminist funded group sex at georgetown cocktail parties to Mussolini’s march on rome.

32

godoggo 07.05.14 at 3:11 am

Damn, Hector, you’re getting smoked! Smoked, I say!

33

Ronan(rf) 07.05.14 at 3:18 am

Well for my part I have no problem personally with Hector. In fact I quite admire online ejitry (fwiw)

34

John Holbo 07.05.14 at 3:21 am

“Your post rests on the assumption that the Wheaton College injunction somehow represents a broad expansion of the Hobby Lobby ruling.”

I make a point of explicitly separating my main point from all such legal details. Drum’s point about the PR tactic is also separate from the question of whether the Wheaton injunction will have a large practical effect.

“Actually, I suspect most women are perfectly fine taking on a subordinate role .”

If you are right, Hector, then Republicans will be hailed as liberators in the War On Women. Time will tell.

“Doesn’t the ruling here expand what a substantial burden is?”

I think it does. Any burden is a substantial burden if the plaintiff sincerely feels it is a substantial burden.

35

Dr. Hilarius 07.05.14 at 3:52 am

The idea that filling out form 700 represents a substantial burden on religious belief shows how quickly we are slipping into predictable absurdity.

Will the next objection be to any notification of religious objection? After all, notification by any form accomplishes the same effect so how can the burden be any less? Maybe women who want access to contraception will have to provide their own notification (thus keeping the employers hands clean).

I can easily see this turning into a huge issue as, without notification, the request for coverage won’t be going through a plan administrator as per ERISA. The burden on the insured to obtain coverage could easily be far larger than the nonsensical religious burden.

36

Lee A. Arnold 07.05.14 at 4:04 am

Time to bring the psychedelic religion into the open. Anecdotally it sounds like more and more people are rejecting the suppression of Being via prescribed anti-depressants, and going the positive spiritual route with entheogen therapy. It is only a matter of time. Or timelessness. I think there is a substantial burden being placed upon religion by forcing this stuff underground. Bring it out into the open, and nobody will ever vote Republican again!

37

Meredith 07.05.14 at 5:27 am

In my “spare” time (read: I’ve been neglecting my proper duties), I’ve been lost in colonial New England for a good six months now. It took today’s Fourth of July (rainy day here in Massachusetts, land still of selectmen and town meetings, so of course we nonetheless managed our sweet little town parade and even fireworks, the latter for the first time in years — I really do love what all that is about, deeply and truly, without excuse — yes, I’d die for it) for me to make the connection: Anne Hutchinson! And all those other women who defied Puritan authority, fundamentally Puritan as these women were, too, in spirit.

In spirit. That’s the part where I think I part company with Anne or Quakers or Baptists of that time; also, with Jonathan Edwards, echt Congo guy though he was (well, when he wasn’t be driven out of his congregation in Northampton): spiritualism! (Not the same as spirit, or spiritedness — thumos, to John.)

You see, even in Anne H’s world (hard not to hear “the Hutch” — the highway — when I speak her name, and to think Westchester, the Bronx, so many “real” places), women are either sluts or ethereal spiritual beings. Only men get to occupy the ground of “human being.” Anne had the support of her loving husband, and what, 15 or so children, from which to make her claims for women — and spirituality. I acclaim Anne’s spiritedness, but I see both Anne and Jonathan, who adored his spiritually model wife (so different though A and J be!) not just in this court majority’s view of life, but also in many of the negative reactions to its decisions. I want to hear from Maria. (Maybe she can save me from ranting.) And from some historians!

38

JHW 07.05.14 at 11:22 am

“I make a point of explicitly separating my main point from all such legal details. Drum’s point about the PR tactic is also separate from the question of whether the Wheaton injunction will have a large practical effect.”

Kevin Drum sounds like his real complaint lies with the fact that the American judiciary decides one case at a time, instead of announcing all at once the result of one case and the next five on similar questions. Hobby Lobby does not decide the question at issue in the Wheaton case because that question was not at issue in Hobby Lobby. That is not a “PR tactic” designed to deceptively suggest narrowness.

Your main point, it seems to me, founders somewhat if in fact the end result here is that the employees of these companies get cost-free contraceptive coverage. Symbolism matters, to be sure, but this is not even a symbolic difference on the consumer end. This is not like being able to enter the same building as everyone else, but through the back door, or getting the same rights as everyone else, but through a civil union. The difference is just in the allocation of responsibilities at the back-end. The boss does not manage to interfere with contraceptive coverage in any material way.

Hobby Lobby takes place against a backdrop of disagreement about religious accommodation. The key question is: when, if ever, can a religious objection excuse upsetting the legal entitlements of specific third parties? What worried many people, myself among them, about Hobby Lobby was that it posed a real potential of giving a very bad answer to that question. The Court could have held that the contraceptive mandate did not serve a compelling interest for RFRA purposes, or that enacting a mini single-payer system for contraceptive coverage qualifies as a less restrictive means of accomplishing the government’s purpose, either of which would have been huge victories for the ability of religious employers to burden their employees according to whatever subjective convictions they happen to have. Neither of these things happened. Instead, Justice Kennedy’s concurrence strongly signals that there are five votes on the Court for upholding a version of the contraceptive mandate that continues to protect the legal entitlement to contraceptive coverage while minimizing, as far as practicable, the involvement of the employer. In other words, while the Court will force the government to accommodate the employer where it thinks the government can do so without too much trouble, in the end the rights of the employees are likely to win out. Nothing about the Wheaton injunction should make us think otherwise.

39

Lynne 07.05.14 at 12:56 pm

Emmryss,

>>“…religious liberty claims by corporations.” Wow. I mean, I don’t go to church myself, but those of you that do — how many corporations have you seen filling up the pews?<<

Yes! That's what I was going to say. It is dangerous to ascribe rights to corporations as though they are citizens. And it keeps happening without anyone even noticing.

And Hector St. Clare is back? WTF? Henry banned him permanently, supposedly.

40

Layman 07.05.14 at 1:28 pm

“Kevin Drum sounds like his real complaint lies with the fact that the American judiciary decides one case at a time, instead of announcing all at once the result of one case and the next five on similar questions.”

The Court hears cases, decides them, and then there is some delay while decisions are written. Clearly both Hobby Lobby and Wheaton were decided before the Hobby Lobby opinion was announced. The majority in Hobby argued that the government should have offered Hobby Lobby the accommodation made available to organizations like Wheaton; while they knew they would argue in Wheaton that the government couldn’t compel Wheaton to conform to that accommodation. Surely that deserves some criticism.

41

JHW 07.05.14 at 2:04 pm

Layman: You’re mistaken on several counts. The nonprofit accommodation issue has not reached the Supreme Court yet. The Wheaton College case is still before the district court. The Supreme Court’s order in that case is not a full merits ruling (unlike Hobby Lobby), it is an interim order clarifying what the parties should do while the case is still pending. It comes out of the immediate post-Hobby Lobby wrangling in the lower courts about what to do with respect to the nonprofit accommodation. It does not tell us what the Supreme Court will do when the nonprofit accommodation issue reaches the Court, and given Justice Kennedy’s concurrence in Hobby Lobby, the best bet is still that they will uphold it. (They may not uphold it in every detail–and this injunction, remember, is about one particular detail–but they will probably uphold it in essence.)

42

John Holbo 07.05.14 at 2:31 pm

“Kevin Drum sounds like his real complaint lies with the fact that the American judiciary decides one case at a time, instead of announcing all at once the result of one case and the next five on similar questions.”

Deciding 5 questions in advance would be impossible, for obvious reasons. By contrast, it would have been quite easy for the court to refrain from sending a positively misleading signal, on Monday, about how it would go on Thursday. Drum seems right about the court’s PR method. Drip, drip, drip.

“Symbolism matters, to be sure, but this is not even a symbolic difference on the consumer end. This is not like being able to enter the same building as everyone else, but through the back door, or getting the same rights as everyone else, but through a civil union.”

This seems to me exactly wrong. The polite legal fiction of treating contraception, under ACA, as a benefit extended by – or withheld by – employers is terrible optics. This is supposed to get around the bad optics of depriving women of their rights to contraception. But it just produces an alternative set of bad optics. It symbolically constructs women as the vassals of their employers – purely symbolically, of course. It’s not like the court is going to be extending employers droit de seigneur any time soon. But just as women would hardly appreciate having an employer stick a post-it on their desk, reading ‘your ass is mine’, even if that didn’t mean a damn thing, in practical terms, women are not going to appreciate having a sense that their sexual autonomy is this token in an elaborately legalistic fight over ‘religious liberty’, which is really – at the emotional level – about consoling conservatives by salvaging some small symbolic measure of patriarchical dominance. The positive emotional jolt conservatives get from the case is going to be a negative jolt for most women.

Of course, Hector St. Clare could be right, and most women voters are pining to read “50 legal shades of gray”, about a young and handsome Scalia-type, who sweeps the heroine off her reproductive feet, ravishing her by excruciating degrees. Very kinky, I grant. But I’m not sure it’s every woman voter’s cup of fantasy tea.

As to the practical implications: I agree that the court could have decided the government lacked a compelling interest, and Kennedy is signalling that there are 5 votes on the other side. Nevertheless, it is far from a foregone conclusion that pretty serious legislative fixes won’t be required. It’s unlikely a Republican congress will go for that. It could very easily turn out that none of this has any practical effect. On the other hand, it could have a pretty big effect. We’ll have to wait and see. This is, of course, relevant to Drum’s point about how the court could have signalled all this Monday, had it chosen to do so. But it tried to pass off a decision that MAY have very serious practical consequences as a decision that won’t have serious practical consequences.

43

Peter K. 07.05.14 at 3:08 pm

Since “closely held” corporations are now effectively people with a right to freedom of religion, shouldn’t it work the other way about as well?

It would be funny if a Democrat is elected in the next Presidential election and a Republican Supreme Court judge retires giving the Democrats a 5-4 majority. They in turn do some legal jiu-jitsu and hold owners of “closely held” corporations personally liable for their companies’ malfeasance.

44

Peter K. 07.05.14 at 3:15 pm

@7

“John Roberts is a deep-cover Naderite-Leninist disruptionist, heightening the contradictions to usher in the New Socialist Utopia. Good work, tovarishch. Good work.”

Alan Greenspan and Ben Bernanke as well. “I don’t see a bubble in housing. The prices reflect a new era.” Then the government is forced to bail out the entire financial sector.

45

mrearl 07.05.14 at 4:09 pm

I have a little trouble with the Court of Appeals’ analogy too conscientious objectors to the draft, quoted by the dissent. It may actually support the He-Man Woman Haters’ Club majority. The government here is not merely saying to the objector, “You know we’ll have to draft some one to take your place”; it’s saying, “OK, now name your substitute,” which gets a little closer to participating in the bloodshed.

That aside, however, the girls seem to have the better of the argument here, especially as they avidly lash the boys with their own Hobby Lobby tongues and spank the Chief with his own application of the All Writs Act.

But that’s just judges arguing, like lawyers are trained to do. What’s really odd here is the boys’ attempt to make everybody happy (temporarily) by making up a distinction without a difference. Wheaton doesn’t have to name its substitute, it can just notify the government and the government will name its substitute, and everybody will get contraceptives, and a pony. If Wheaton’s faith is as profound as it claims, is that new form-over-substance no less insult to it than the one at issue?

46

bianca steele 07.05.14 at 4:30 pm

But just as women would hardly appreciate having an employer stick a post-it on their desk, reading ‘your ass is mine’,

Women presumably includes managers’ wives. One assumes “women want 50 shades of grey” means “women want single me to look after them,” and he’s okay with that because his religion tells him he should find a woman and look after her [1]. When he’s been married ten years and wants to stay married, and he’s a supervisor who’s forced to worry about the feelings of his subordinates, his inability to see women in any other way than “subordinate, and subordinate means available, and available means sexually,” that’ll change.

OT though. The rest of the points in the OP remain.

[1] If he’d been told since boyhood that girls would try to trick him into impregnating them to get a free ride through life, his eventual attitude would be very different.

47

JHW 07.05.14 at 4:34 pm

“By contrast, it would have been quite easy for the court to refrain from sending a positively misleading signal, on Monday, about how it would go on Thursday.”

This would be a fair objection if the Court had thrown out the nonprofit accommodation as a whole on Thursday. If the majority thinks that only government provision of contraception, with no employer involvement whatsoever, will ultimately suffice, they should have said so. But what the Court did in Wheaton probably does not mean that the nonprofit accommodation is unworkable. And if it does mean that, the Court is likely to backtrack. (This is, after all, only an interim order, and its language and rationale suggest strongly that the Court is not trying to disable the nonprofit accommodation.)

As far as symbolism: I find your view somewhat odd. Here is the baseline pre-ACA: health insurance is a benefit provided by employers, and they can choose whether or not to cover contraception. Here is the baseline post-ACA: health insurance is still a benefit provided by employers, but they are required to provide cost-free contraception. Here is the accommodation: health insurance is still a benefit for the most part provided by employers, but this piece of it gets provided by a third party instead of by the employer. The pre-ACA situation involves employer power over sexual autonomy but the second two do not. The accommodation involves a kind of power, to be sure, but it is not power *over employees*, not even symbolically.

Undoubtedly some women (and some men, too) will be bothered by the prospect that religious objections to contraceptive use “count” at all, wrapped as those objections are in a patriarchal sexual ideology: “I don’t want you to use contraception, so I don’t want to be involved in you getting it.” But that is just RFRA, not even a particular conservative reading of RFRA. RFRA does not distinguish between sexist and non-sexist religious beliefs, or racist and non-racist religious beliefs, or between any religious beliefs at all. And the bare interest in not accommodating a religious belief because that religious belief is objectionable cannot be a compelling interest for RFRA purposes (and might even be a violation of the Free Exercise Clause).

As you say, we will have to see as to the practical consequences. I don’t think the Hobby Lobby hole will require a legislative fix; the nonprofit accommodation can probably be extended to for-profits by regulation. But the nonprofit accommodation is also not as great as advertised (the government foots much of the bill, and if the hoped-for cost savings from contraceptive use don’t materialize soon, it will probably foot more of it). I am by no means suggesting that the Hobby Lobby ruling was correct or will end up being harmless. I just think people are making too much of the Wheaton College order.

48

John Holbo 07.05.14 at 5:01 pm

Well, symbolism is as symbolism does, I suppose. I’m not going to bother to urge women to feel indignant, I just predict that they will – unless they have strong ideological priors in favor of the conservative position. The baseline CAN be construed as you say, but if it were just that, then conservatives wouldn’t be spiking the ball in the endzone, saying ‘we win!’ There’s a fundamental indeterminacy in the overall situation, when it comes to agency. Are the employers making this happen or is the government making it happen? Both, obviously. Conservatives want it to be the government making it happen, for complaint purposes, and employers making it happen, for privilege purposes. That doesn’t really make sense, but the US system is just kludgy and not very coherently built, so at the end of the day people can combine rather inconsistent attitudes as to who or what is really ‘doing it’ when it comes to healthcare provision/insurance. There isn’t a demonstrable answer. It’s kind of a matter of how you choose to construe the metaphysics of it. My point is that there’s no way to construe the legal metaphysics, such that conservatives will both get a satisfying victory, and women will be basically ok with it. It’s zero-sum. One side wins, the other loses. The line that conservatives are currently trying out – i.e. this isn’t a deprivation of rights, just a withholding of optional benefits – really has a very patriarchal aspect to it. Women don’t want to feel that they are getting contraception only by the lordly liberal good grace of their beneficent employers. They want it to be that they are exercising their rights, and getting benefits promised to them by law. The conservative way of looking at it is way too feudal. There IS something feudal about the crazy employer-provided insurance system. So conservatives can say: it’s not us doing it, it’s just this crazy feudal patchwork. But women don’t have to like it, and I predict the symbolism of it will really rub them the wrong way, even women whose employers are delighted to offer them all benefits. Women aren’t going to want to think ‘but it’s still only by the boss’s good graces. He’s letting me get the contraception I want, but he doesn’t HAVE to.’ That’s the part conservatives like. There’s a gracious, hierarchical, moral quality to that arrangement, in their eyes. But I predict women won’t appreciate it. It will culturally passive-aggressive or just plain aggressive.

“But that is just RFRA, not even a particular conservative reading of RFRA.”

I’m not an expert but my impression is that the court’s decision to say, in effect, if it’s good for for-profit individuals, and good for not-for-profit corporations, why not for-profit corporations? There’s an undeniable, elementary logic to the whole persons-is-persons progression of it. (In that sense, I agree, it’s not conservatism, just modus ponens.) But, in practice, it’s a departure, placing businesses on the same footing as churches. I doubt that the congresscritters who nigh-unanimously voted for RFRA thought they were voting for such a potentially fraught departure.

49

Hector_St_Clare 07.05.14 at 5:02 pm

John Holbo,

I thank you for your gracious response. I have to admit, I have quite a bit of respect for your charity towards your opponents and good-natured approach, and for your wife’s rhetorical brilliance. When the time comes to send the rest of these Crooked Timber clowns and fools to the labour camps, I’d happily give you both an exception, and maybe you could even keep your voting / blogging rights.

I am unclear though, am I banned or not? if so, that’s fair enough. I view myself as a moral gad-fly, trying to sting cultural liberals into awareness of their own moral outrageousness, but there comes a point when the hide of ignorance and immorality is thick enough that the stings of conscience no longer have any effect.

50

Glen Tomkins 07.05.14 at 5:04 pm

” It’s really not realistic to suppose women will be more immune to the symbolism of the drama than conservatives themselves, however it plays out in terms of provision of birth control to women who need it.”

Actually, yes, they almost certainly will get away with energizing their base with the symbolism, while not energizing our base with the symbolism.

The other side makes an effort to tie ideology, with its drama and symbolism, to practical politics. Their voters understand, as a result of this effort, that if they want these victories for their side to continue, they need to show up at the polls in November to vote for R Senators to insure that their party will continue to control the court into the indefinite future. An R majority Senate will keep Obama, or any D who makes it into the WH in 2016, from appointing a Kennedy or RBG replacement, and it will keep the Ds in the Senate from blocking an R president’s replacement for either of these two.

Had our side been equally attentive to the need to connect politics with ideology, the same practical political considerations would motivate voters who don’t want these Federalist Society/Opus Dei victories to continue, to show up at the polls in November to vote for D Senators, so that no successor to Kennedy or RBG would make it past a D majority, and no R majority in the Senate could block a D president nominee from becoming the fifth vote that would overturn these victories for the other side. Unfortunately, the more attentive the voter inclined to vote for our side is, the more clearly he or she will understand that voting for a D Senator this November will not in any way affect the composition of the court. We don’t believe in litmus tests, and our Senators will absolutely not vote to keep a nominee off the bench just because of a prior record of being Opus Dei or Federalist Society.

I understand that people on our side have noble reasons for not wanting to politicize the courts. We tend to believe in this ideal of courts that are insulated from the political pressure the other branches are subject to, and are therefore more free to comfort the afflicted and afflict the comfortable. But precisely the deference this ideal has generated has, by making it taboo for our side to even consider limiting the courts, made SCOTUS the one unchecked, unlimited center of raw political power in our system. Of course the other side made it a generation-long project to take over that commanding height of current US politics.

The other side controls the court. They, correctly, see this in terms of power politics. However correct and intellectually devastating the critique we might devise of their recent decisions in terms of legal and logical argumentation, such critiques miss the point that the less intellectually defensible their decisions, the clearer the assertion of power. We’re not going to bring any of the junta that controls SCOTUS over to sense and reason by the power of superior argumentation.

Worse, much worse, we’re not going to get people to the polls in November, by fighting the easy battle, out arguing people who aren’t very bright anyway, but aren’t even trying, since they know perfectly well that they are in power and don’t have to justify their decisions.

If our side wants voters on our side to come out this November and vote for our politicos, we need to be able to tell them how their votes will give us the power to fight the power that the other side is exerting through their control of SCOTUS. I’m not even going to try to suggest that our side should come out for impeaching Scalito, or limiting SCOTUS jurisdiction by law. Baby steps. But can we at least talk about litmus tests, please? Can we even talk about allowing our side to vote against nominees who belong to organizations overtly committed to overturning big chunks of settled law in general, and, in particular, the availability of contraception? Can we start a discussion from litmus tests over the availability of contraception that makes it very clear, by creating a controversy, that the continued availability of contraception is under threat unless people show up in November to vote for Senators who will impose that very litmus test?

For once, can our side choreograph the symbolism and drama to help make the point that our politicos need to be given some power this November? That point won’t make itself, because the key element lacking is not that our side isn’t right on the issue, it’s that our side is not willing to use the power the Senate has to block nominees.

51

Layman 07.05.14 at 5:26 pm

“Layman: You’re mistaken on several counts.”

But not, apparently, in the essence: When the Court opined on Monday that the accommodation available to Wheaton should have been offered to Hobby Lobby, they knew they felt uncertain enough about that accommodation that they’d permit Wheaton to continue defying the law.

52

Donald A. Coffin 07.05.14 at 5:31 pm

I think what we have here is a Dred Scott decision for the 20th century. May all those on the Supreme Court who voted for these rulings be as fondly remembered as Roger Taney.

53

NomadUK 07.05.14 at 5:53 pm

I think what we have here is a Dred Scott decision for the 20th century. May all those on the Supreme Court who voted for these rulings be as fondly remembered as Roger Taney.

21st century, surely. And, of course, it took 6 years, a civil war, and three Constitutional amendments to reverse that decision, with a presidential assassination thrown in for good measure. Could get pretty exciting between now and 2020.

54

JHW 07.05.14 at 6:05 pm

John Holbo: Maybe our difference of opinion here is just this. There are conservatives who are saying “this isn’t a deprivation of rights, just a withholding of optional benefits.” But they did not win Monday; they did not win on the legal rationale, which did not reject the compelling interest claim, and they (probably) did not win on the practical effect, which is that women’s right to cost-free contraceptive coverage remains fully intact. To the extent they think they won, they do not understand the decision. The view that the contraceptive mandate is as a whole distasteful, because women should pay for their own “recreational” sex and the mandate cabins the discretionary power of employers, did not win anything from the Hobby Lobby decision.

The conservative religious believers who genuinely won from the Hobby Lobby ruling may (probably do) share that view, but what they won are two other things: first, a symbolic kind of affirmation from the Supreme Court of their own sense of themselves as a mistreated, marginalized minority, and, second, a practical result that will probably enable some of them to avoid violating their sincere religious convictions. These are not zero-sum.

55

Mario Diana 07.05.14 at 6:46 pm

Is the decision in line with the Religious Freedom Restoration Act of 1993, which was supported overwhelmingly at the time by civil liberties groups and passed by the 103rd Congress, which had a Democratic majority in both houses, and signed into law by President Bill Clinton? If the answer is no, then somebody be kind enough to tell me how so? If the answer is yes, then the answer is to amend the law.

56

Layman 07.05.14 at 7:52 pm

“The view that the contraceptive mandate is as a whole distasteful, because women should pay for their own “recreational” sex and the mandate cabins the discretionary power of employers, did not win anything from the Hobby Lobby decision.”

This is surely wrong. The Court ruled that minimum standards for employer-subsidized health insurance cannot be enforced if they conflict with the employer’s religious views, but only with respect to contraception. If your religious views hold that medical intervention of any kind is a sin, too bad. If you have a religious objection to blood transfusions, tough luck. Vaccines? You’re out of luck. The Court has singled out contraception as a special class of medical service which is trumped by strong religious feelings; and they did so by first on Monday pretending they were only talking about some kinds of contraception, and then on Tuesday clarifying that they mean ALL contraception.

57

Layman 07.05.14 at 8:04 pm

“Is the decision in line with the Religious Freedom Restoration Act of 1993, which was supported overwhelmingly at the time by civil liberties groups and passed by the 103rd Congress, which had a Democratic majority in both houses, and signed into law by President Bill Clinton?”

No.

“If the answer is no, then somebody be kind enough to tell me how so?”

Hobby Lobby argues that if the subsidized health insurance they provide to their employees were to include contraception, they would be subsidizing behavior to which the have religious objections, and that this creates a substantial burden to the free exercise of their religion. Yet Hobby Lobby pays their employees wages, and those employees may use those wages to buy contraception – even abortions! – without apparently suffering any substantial burden. The insurance is simply another form of wages, and Hobby Lobby provides it instead of wages because they in turn receive a subsidy from the government to do so. But money is fungible, and Hobby Lobby’s money is used to by contraception whether they wish it or not. They’re already morally culpable.

58

JHW 07.05.14 at 8:48 pm

“The Court ruled that minimum standards for employer-subsidized health insurance cannot be enforced if they conflict with the employer’s religious views, but only with respect to contraception.”

Yes, I think this is right too, and that’s an important caveat to what I said. Though there is nothing about the Hobby Lobby holding that depends explicitly on the fact that this is contraception rather than some other health service, the majority in Hobby Lobby is doing something to the contraceptive mandate that they most likely would not do to other kinds of preventive care covered by ACA. So in that sense you’re right, one of the things that is going on in Hobby Lobby is the Supreme Court implicitly not seeing contraception as having fully equal status to other health services.

But my point is that, even so, the Court does not take this very far. If people are disturbed by women getting cost-free contraceptive coverage, they should still be disturbed, because women will still get cost-free contraceptive coverage. And the fact that they will still get cost-free contraceptive coverage isn’t an accident of the ruling, but necessary to it; the government can’t apply the direct mandate only because it has another way of accomplishing the purpose of providing women with cost-free contraceptive coverage.

59

Layman 07.05.14 at 9:34 pm

“Though there is nothing about the Hobby Lobby holding that depends explicitly on the fact that this is contraception rather than some other health service”

I honestly don’t know what you mean here. The Court found that the contraception mandate, specifically, violated RFRA; and specifically ruled out applying this reasoning to other health care services mandated by ACA. The holding certainly ‘depends explicitly on the fact that this is contraception.’

Unless you think they don’t mean it so narrowly, and there’s yet another shoe to drop…?

60

Layman 07.05.14 at 9:37 pm

“And the fact that they will still get cost-free contraceptive coverage isn’t an accident of the ruling, but necessary to it; the government can’t apply the direct mandate only because it has another way of accomplishing the purpose of providing women with cost-free contraceptive coverage.”

Yes, this was the spin they put on it Monday, before they revealed on Thursday that they’re not entirely sure about whether that ‘other way of accomplishing it’ stands up to scrutiny.

Tell me: Do you concur with the majority view in Hobby Lobby, that while the mandate meets the compelling interest standard, it fails the substantial burden standard?

61

Main Street Muse 07.05.14 at 9:51 pm

To Layman, “Hobby Lobby argues that if the subsidized health insurance they provide to their employees were to include contraception, they would be subsidizing behavior to which the have religious objections, and that this creates a substantial burden to the free exercise of their religion.”

Please note: Hobby Lobby provides coverage for SOME contraception. The ones they object to are the murder weapons – like the IUD. SCOTUS extended the ruling to ALL contraception later, but Hobby Lobby wanted to isolate just a few.

This Supreme Court has decided that religion trumps the Constitution. Quite sad.

62

Layman 07.05.14 at 10:05 pm

” The ones they object to are the murder weapons – like the IUD.”

I can call a seat belt a murder weapon if I want, and assert an RFRA objection to Federal seat belt standards. Even though the Court believes my opinion on seat belts to be factually wrong, apparently if it’s sincere they’ll uphold my objection. No, wait, it has to be about contraception, so I’ll have to believe that seat belts cause abortions. No problem, I’m sure I can get sincere about that.

Phooey.

63

Saurs 07.05.14 at 10:18 pm

John I think you are right, so the arena of contention will move to the new formulation of Foxified slanguage, to make uneducated women believe that this is not a big deal.

I suspect one salient thing will be how many women rationalize their acceptance of the decision, the shameful behavior, the PR, all of it.

Of course, Hector St. Clare could be right, and most women voters are pining to read “50 legal shades of gray”, about a young and handsome Scalia-type, who sweeps the heroine off her reproductive feet, ravishing her by excruciating degrees. Very kinky, I grant. But I’m not sure it’s every woman voter’s cup of fantasy tea.

I’m not going to bother to urge women to feel indignant, I just predict that they will – unless they have strong ideological priors in favor of the conservative position.

That aside, however, the girls seem to have the better of the argument here, especially as they avidly lash the boys with their own Hobby Lobby tongues and spank the Chief with his own application of the All Writs Act.

Can you guys stop talking about women as a monolith, and as if we’re not here? The cutesy lady-sex language is not necessary, either.

And, on the odd chance you actually give a shit about this decision beyond its utility as a fruitful topic for consequence-free on-line discussion between intellectual bros, please stop behaving as though women can solve our oppression entirely on our own. We’re going to need some votes from you, as well.

64

Meredith 07.05.14 at 10:47 pm

Layman @40. Interesting question. Since my daughter is now clerking, I have a fellow layman’s sense (and I am very “laity” here) of how all this might work. I can imagine that thoroughgoing disconnect is entirely possible. Also possible, elaborate maneuvering by clerks, justices, and permanent clerks (or whatever they’re actually called — I didn’t even know they existed till recently, but now I wonder if more shouldn’t be studied about these long-termers, who stay forever with their justice and don’t ever go on to “great things”.)

65

bad Jim 07.06.14 at 5:02 am

The five Catholic men on the court have made it clear that preventive medications to which the Catholic Church has objections are protected matters of conscience, whereas other sorts of preventive medicine are not, so blood transfusions and vaccinations are probably safe for the foreseeable future. Bacteria and viruses have no rights, but every sperm is sacred.

66

John Holbo 07.06.14 at 12:00 pm

“There are conservatives who are saying “this isn’t a deprivation of rights, just a withholding of optional benefits.” But they did not win Monday; they did not win on the legal rationale, which did not reject the compelling interest claim, and they (probably) did not win on the practical effect, which is that women’s right to cost-free contraceptive coverage remains fully intact.”

I have to disagree with this reading. It seems to me the original Hobby Lobby decision goes as far as it can to favor the ‘women don’t have a right to this, it’s just an employer-conferred benefit’ line, which makes it sound more reasonable for the employer to conscientiously withhold the benefit. It make it a NOT doing, rather than a doing. There’s a lot of language like this:

“But it could not reasonably be maintained that any burden on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is permissible under RFRA so long as the relevant legal obligation requires the religious adherent to confer a benefit on third parties. Otherwise, for example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants).”

See footnote 37.

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John Holbo 07.06.14 at 12:05 pm

It is true, of course, that the court also implicitly upheld the ‘compelling interest’ side of the question. But it seems to me that they are doing so without giving up the proposition that employers providing this thing, that the government has a compelling interest in seeing provided, are providing an optional benefit. There’s a tension there, insofar as women don’t have a right to contraception provided by employers, only a right to contraceptive coverage.

At any rate, my point is that construing something guaranteed by ACA as an optional benefit, extended by the good graces of beneficent employers, rather than something to which women have a right, contributes to the feudal symbolism of it all. Women aren’t going to like to feel that they have their contraception only by the good graces of their employers, voluntarily extending them a benefit that they could (if they got God in the right way) withhold at any time.

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ZM 07.06.14 at 1:06 pm

7.5.14 10.18 “Can you guys stop talking about women as a monolith, and as if we’re not here? “

7.6.14 9.24 “What’s the alternative? A general strike? It’s far more likely that a statuesque woman will lay hands upon you and insist you make love to her. That happened to me. What some of you imagine is an impossible fantasy.”

7.6.14 11.17 “Sometimes it’s hard to tell how other people think. It’s possible that a woman who yells “Woohoo! I’m drunk and I feel hot!” might have a vague intuition that good things will come of it, without expecting any particular reaction from anybody. Or she might think of it as a mating call, and hope to attract men who will treat her the ways she wants to be treated.”

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John Holbo 07.06.14 at 1:19 pm

“Can you guys stop talking about women as a monolith, and as if we’re not here? The cutesy lady-sex language is not necessary, either.”

Am I being charged? ‘You guys’ is a bit vague.

70

JHW 07.06.14 at 1:33 pm

John Holbo: That’s Alito, who at certain points in the majority opinion reads like he’s chomping at the bit to go further. I’m sure he doesn’t think there is a compelling interest in guaranteeing contraceptive coverage to women, and the passage you quote is one of the many instances where he seems to tip his hat to that effect. But compare the language choices of Justice Kennedy, concurring:

“Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.”

“There’s a tension there, insofar as women don’t have a right to contraception provided by employers, only a right to contraceptive coverage. “

Isn’t that basically right, though?

ACA is effectively a scheme that intends to transform health insurance, and health insurance that includes a certain specified package of benefits (including cost-free contraceptive care), into a statutory right. (It does so partially and imperfectly, especially given the huge hole the Roberts Court carved into the Medicaid expansion, and it could be and ought to be strengthened in its capacity to pursue that goal, but that’s another discussion.) It follows, I think, quite directly that cost-free contraceptive care (among other things) is now a statutory entitlement to which women can meaningfully claim a right, and employer interference with the ability of women to lay claim to that right cannot be excused by a felt sense of religious obligation any more than such a sense could excuse wage theft.

But that does not establish that the central role of employers in the administration of ACA’s health insurance scheme is or ought to be essential rather than contingent. This part is different in kind from wage theft. If your employer owes you some sum of money in remuneration for the work you performed, it’s important that this is owed to you by your employer rather than by, say, society or the government. But it is not important to the project of universal health care that the package of health benefits you are entitled to comes entirely from your employer, rather than entirely from a government program, or rather than partially from your employer and partially from the insurer or plan administrator who contracts with your employer. None of those schemes mean that women have contraceptive coverage “only by the good graces of their employers”; they have contraceptive coverage by law, period, and they do whatever their employer thinks, and insofar as ACA works properly, they should even if they switch jobs or leave the workforce entirely. That seems pretty nearly the opposite of “feudal” to me.

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John Holbo 07.06.14 at 1:50 pm

“It follows, I think, quite directly that cost-free contraceptive care (among other things) is now a statutory entitlement to which women can meaningfully claim a right, and employer interference with the ability of women to lay claim to that right cannot be excused by a felt sense of religious obligation any more than such a sense could excuse wage theft.”

And:

“None of those schemes mean that women have contraceptive coverage “only by the good graces of their employers”; they have contraceptive coverage by law, period”

I think the problem is that women have a right under ACA, as you say, but – due to the religious liberty carve-outs – potentially no practical means exists of ensuring that women can enjoy the right in practice. It is far from a foregone conclusion that a legislative fix will be found. A ‘compelling interest’ in something doesn’t guarantee that the interest is legislatively realized.

Conservatives want to emphasize more the ‘look, if you can’t force employers to do this thing, you can’t force ‘em – that’s freedom!’ aspect. But I expect most women won’t see it that way. It will look to them like someone figured out a legal dodge to deprive them of something they are guaranteed, by law. Because someone wanted to find a legal dodge to do that. And they will be right, too.

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William Timberman 07.06.14 at 2:32 pm

I think that John has the right of it here. To argue the law with Alito’s court in this instance — as in many others — is to wear their cap and bells. If lefties with the appropriate legal qualifications want to engage Alito et al. on their own ground in defense of the integrity of the profession, I say fine, go right ahead, but the more important duty is to remind the conservative cheerleaders for the Court that using the law as a crowbar has its dangers, especially when your concept of the common good is as narrow as theirs is.

73

Happy Jack 07.06.14 at 3:37 pm

cost-free contraceptive care

I can’t speak to all plans, but my insurance only covers “certain generics” of contraceptives with no co-pay. I’ve noticed an emphasis on “free” in discussions about contraceptives, as opposed to other generic drugs. Apparently I’m blessed to have a plan where I don’t pay full freight for all my drugs.

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Lee A. Arnold 07.06.14 at 4:59 pm

Well there is also the question of why employees cannot exercise their own religion while working for another, i.e. what is the legal basis of the idea that corporations, as persons, get to extend their religious beliefs OVER employees, as persons. Not to mention that the Court has put itself into the spiritual position of adjudicating what is a burden upon the exercise of religion, and what is not. This will not be going well, for Mr Justice Knucklehead!

75

Shelley 07.06.14 at 6:43 pm

I don’t know. In the twenty-first century, can we ever say that PR backfires?

Because what else is left?

Signed,

Discouraged

76

J Thomas 07.06.14 at 7:45 pm

There is no particular reason why businesses should be allowed to provide health coverage to their employees. It’s causing various sorts of disruption that would go away if they quit doing it.

When the votes are there, likely Congress will forbid businesses to give away health insurance to their employees. (Oh please, Breh’r Fox, do anything you want to me but don’t throw me in that there briar patch!) And we will get a new business tax to help pay the cost of ACA.

77

Bruce Wilder 07.06.14 at 8:41 pm

. . . there is also the question of why employees cannot exercise their own religion while working for another, i.e. what is the legal basis of the idea that corporations, as persons, get to extend their religious beliefs OVER employees, as persons.

Welcome to the neo-feudal order. I don’t think this is an anomaly in the jurisprudence of the Roberts Court, but, rather, the essence. Unfortunately, it is also a complement to the Obama political and economic policy, so, even though the ruling has only a statutory grounding, don’t expect effective pushback.

There’s lots of contempt among the conservative majority on the Court for the Obama administration, but I don’t think that indicates that they aren’t heading in the same direction, only that they don’t like sharing the path.

78

Bruce Wilder 07.06.14 at 8:46 pm

J Thomas @ 76

I sometimes remind my easily confused friends that the first step in any serious reform of health care would be to make for-profit health insurance a felony.

79

Bruce Wilder 07.06.14 at 8:50 pm

Shelley: In the twenty-first century, can we ever say that PR backfires? Because what else is left?

I flashed on an image of the Left as a ghostly ephemera issuing from the exhaust pipe of a PR engine.

80

Main Street Muse 07.06.14 at 10:40 pm

I am alarmed by this decision for several reasons – the idea that certain forms of birth control are identified as abortion, the idea the for-profit corporations have religious ideals (!!!) that must be protected under the 1993 RFRA.

Here’s a quote from Alito’s opinion that I also find alarming: “According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion.”

I find it alarming that the burden of proof is on HHS to prove private corporations cannot exercise religion. What does it mean “to exercise a religion?” How does a corporation pray? How does a corporation go to church?

Here’s another startling quote from Alito’s opinion:

“The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.”

The idea that including the IUD is in someway facilitating an “immoral act by another” – and that the Hobby Lobby entity is somehow encouraging immorality should they be forced to cover the IUD and morning after birth control options is a stretch. These products are not “abortions.” And abortions are in fact legal in the US (though I think this court will change that soon.)

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Main Street Muse 07.06.14 at 10:42 pm

I have a comment stuck in moderation – but I want to share a quote from Alito’s opinion with this audience:

“The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.”

The idea that including the IUD is in someway facilitating an “immoral act by another” – and that the Hobby Lobby entity is somehow encouraging immorality should they be forced to cover the IUD and morning after birth control options is a stretch.

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Layman 07.07.14 at 12:00 am

‘The idea that including the IUD is in someway facilitating an “immoral act by another” – and that the Hobby Lobby entity is somehow encouraging immorality should they be forced to cover the IUD and morning after birth control options is a stretch.’

Of course. If providing them with insurance they can use to get IUDs is facilitation of immorality, then paying them wages they can use to get IUDs is also facilitation of immorality. How not?

83

WT 07.07.14 at 2:49 am

@48: “My point is that there’s no way to construe the legal metaphysics, such that conservatives will both get a satisfying victory, and women will be basically ok with it.”

An odd dichotomy you pose there, as if there’s a Zenn diagram with “women” in one circle and “conservatives” in another, with zero overlap. In fact, lots of women are conservative, and even some who aren’t conservative may be supportive of the Hobby Lobby decision, perhaps because they are more friendly to religious liberty or less concerned with relatively minor insurance benefits than you think.

Also:
“Women don’t want to feel that they are getting contraception only by the lordly liberal good grace of their beneficent employers.”

Good point. It is really too bad that we seem to be trapped in a barter system of compensation — employees perform work for an employer but can apparently only be reimbursed with free coupons for specific services or goods.

If only we as a society could invent an abstract medium of exchange (perhaps it could be called “money”) that employers could use to pay their employees, such that the employees could then use that medium of exchange in the marketplace to purchase the goods of their choice. If that were only the case, women could take their “money” to a pharmacy and buy contraception for themselves!

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Patrick 07.07.14 at 5:51 am

Regarding the argument about the breadth of the decision-

Court cases set precedent on different levels. On the most strict, you have the decision as it applies to the parties to the case. But beneath that you have the legal reasoning which led to the decision.

The conservative bench has a habit of declaring that their legal reasoning is specific to just the case they’re evaluating, and shouldn’t be precedent for other cases. But you can’t actually do that. You can say it, but it means nothing. See, e.g., lower courts citing the legal reasoning from Bush v. Gore in spite of the Supreme Court’s request that they not do so. It’s what they SHOULD do; it’s literally their job.

Imagine if the Court ruled that all red blings are blongs, via the logic that all blings are blongs, and then appended a clause stating that they were DEFINITELY, DEFINITELY NOT setting precedent about blue blongs, just red ones. Well, they can say that all they want. But the lower courts aren’t going to care. They’re still going to get the message that if they rule that a blue bling isn’t a blong, the Supreme Court will reverse them. And that’s what makes a decision precedent.

Personally, I know how I’d argue the inevitable blood transfusion case- I’d distinguish it based on the connection between blood transfusions and emergency care. I’d argue that not providing full emergency care in one’s health insurance will lead to disastrous incidences where people with employer provided health insurance go to the emergency room assuming they’re insured for basic emergency care only to find out that they aren’t. By contrast, someone who’s employer doesn’t provide birth control will generally have time to consider the issue and plan for how to deal with it in a way that isn’t possible in an ambulance. I’d argue that this makes requiring coverage for blood transfusions a narrowly tailored, least restrictive method in a way that requiring birth control coverage was not.

It’s a weak difference given that emergency birth control is also a thing, but the Supreme Court doesn’t know much about lady parts so I think I could get it by them. What are they going to do, write in their decision that they interfered with women’s emergency care, so my distinction is illusory? Nah, they’ll just pretend that everything in the Hobby Lobby case was hunky dory and no one was or will be harmed. It will give them the hook they need to rule in favor of Catholic moral values while snubbing religious minorities.

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John Holbo 07.07.14 at 1:04 pm

“An odd dichotomy you pose there, as if there’s a Zenn diagram with “women” in one circle and “conservatives” in another, with zero overlap. In fact, lots of women are conservative, and even some who aren’t conservative may be supportive of the Hobby Lobby decision, perhaps because they are more friendly to religious liberty or less concerned with relatively minor insurance benefits than you think.”

This is not really such an odd dichotomy. You just use ‘most’ to modify women, per the post, and the mystery dissolves. Just common sense, really. Obviously some women are very strongly committed to conservatism and they are presumably delighted, on partisan/ideological grounds. My point – this is explicit in the post – is that women who do not have strong conservative priors will likely be put off. The Republicans can hardly afford to annoy most women, or even just most women who aren’t already ideologically conservative. The Republicans need to convince women, who aren’t sure, that there isn’t a War On Women.

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Barry 07.07.14 at 1:44 pm

Patrick: “By contrast, someone who’s employer doesn’t provide birth control will generally have time to consider the issue and plan for how to deal with it in a way that isn’t possible in an ambulance. I’d argue that this makes requiring coverage for blood transfusions a narrowly tailored, least restrictive method in a way that requiring birth control coverage was not.”

There used to be a ‘Negro Motorists’ Guide’ to help certain people plan on how they’d deal with travel issues, due to other people’s ‘religious freedom’.

87

MPAVictoria 07.07.14 at 2:23 pm

“There used to be a ‘Negro Motorists’ Guide’ to help certain people plan on how they’d deal with travel issues, due to other people’s ‘religious freedom’.”

Ahhh Freedom…

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Layman 07.07.14 at 2:32 pm

“There used to be a ‘Negro Motorists’ Guide’ to help certain people plan on how they’d deal with travel issues, due to other people’s ‘religious freedom’.”

And we have a winner!

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bianca steele 07.07.14 at 3:38 pm

John Holbo @ 85

Well, women who have strong conservative priors will be okay as long as they can believe their employers’ beliefs are the same as theirs, I guess. Some of them may be shocked anyway to discover the belief that the employer is a feudal system. Some of them won’t, if conservative priors by definition includes employer feudalism. But those who were under the belief that the US was a liberal, contract-based society in which the secular employment realm was absolutely neutral w/r/t religion and absolutely non-relational (in the feudal way), even if they’re conservative, if they belong to a minority religion, may find themselves perturbed. Some conservative women may not want to work for an employer, if things are feudal, whose religion is different from theirs and makes demands on them they find it difficult to comply with.

OTOH those women without strong conservative priors who find the whole feudal thing b.s. will probably continue believing in the whole liberal, contract-based, transactional and non-relational thing and will just avoid employers who seem not to.

90

Ogden Wernstrom 07.07.14 at 11:43 pm

Wonks Anonymous 07.04.14 at 7:07 pm

What I find odd is that Breyer signed on to the decision, even though he dissented in Hobby Lobby.

Perhaps Breyer still follows the doctrine of stare decisis, something that The Roberts Court appears to have neglected.

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WT 07.08.14 at 1:26 am

@85 “My point – this is explicit in the post – is that women who do not have strong conservative priors will likely be put off. “

I don’t share your pessimistic view of women there. Paying for birth control via insurance is a bit silly — akin to paying for gasoline through one’s car insurance (a weekly fillup is far more expensive than any birth control, by the way). If you can’t afford a weekly fillup on its own, neither could you afford an “insurance” plan that paid for a weekly fillup. Same for birth control.

It doesn’t really make much sense to say that an “insurance” policy should cover regular weekly or monthly expenses, and hopefully enough women have the economic literacy to realize that they can just pay for birth control directly using the medium of exchange that we call “money,” and they’ll be just as well off.

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MPAVictoria 07.08.14 at 3:41 am

@91

Echidna of the Snakes posted a better response to your comment than I ever could. So I am just going to post hers.

http://echidneofthesnakes.blogspot.ca/2014/07/the-ur-slut-and-pay-for-your-own.html#

“The case for including contraception in the package of care which comes without out-of-pocket costs is that it’s ultimately good for the health and well-being of both the woman, her future children (because pregnancies are planned and thus the parents can try to be in the best state of health before conception) and her whole family. It’s even good for everybody else, given that planned pregnancies and births are less likely to have high health care costs and high later government subsidies for the children.”

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Meredith 07.08.14 at 6:12 am

WT, a comment on your “a weekly fillup is far more expensive than any birth control, by the way.” I’m so tired of this notion that there’s some easy calculus about the cost of birth control (not to mention weekly fillup — depends on what you drive and how much you drive it, assuming you own a car or truck; how about comparing to cost of subway or bus? how about thinking, gee, can I pay for the bus AND my birth control?).

Birth-control pills, IUD’s, the array: it’s not like buying a condom, one-size-fits-all (ha!).

Only a few years ago, when I was paying a huge amount of money (hundreds a month) for my daughter’s COBRA coverage, on a policy that covered her out-of-my-state life, the birth-control pills her doctor wanted her to take (hello! there really are doctors and patients at work here! a variety of pharmaceuticals and devices! a variety of issues women have! women’s bodies are a little more complicated than “condom at local drugstore”; my daughter was advised a specific pill) cost my daughter $125.00 a month — even with really really good insurance. (In MA, no less.) Her rent at the time was about $1300, as I recall.

The other day, said daughter was talking (phone) with her father and me about her and her husband’s baby plans. My husband launched into some sweet but utterly clueless advice about how to get pregnant. Well, not utterly clueless, but about 30 years out of date. Men just don’t pay much attention to these things most of the time. For some strange reason, women do.

Let women figure it out — the prevention and the promotion of pregnancy — with their doctors. Isn’t that to the advantage and benefit of men as well as women, nearly all the time? And let the insurance cover it. In exchange, we’ll cover your Viagra (or whatever specific drug or regimen your physician recommends).

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bad Jim 07.08.14 at 8:21 am

Part of the problem is that we don’t think of health care as maintaining health so much as dealing with sickness. “America has the best health care in the world” is only true in the sense that our hospitals can do some amazing things; we don’t do a good job of keeping the average person well.

Health insurance is an odd thing. Even in this country it’s actually expected to keep people well; it’s as though auto insurance was expected to cover maintenance. A key reason for the difference is that we expect cars to be replaced eventually, but the alternative to keeping ourselves going is dreadful.

One of the goals of healthcare, and hence of health insurance, is to reduce the need for treatment. Things like family planning and reproductive health care do that.

It’s grimly amusing to hear from market fundamentalists on this subject, since they claim to be rigorously analytical, but are clearly ignorant of decades of experimental data. Of all the wealthy nations, when it comes to health care we have the highest costs and the worst outcomes. “At least we’re not France!” is a rather perverse boast.

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J Thomas 07.08.14 at 11:52 am

WT has a point. If insurance is for sharing risks, costs which are predictable should not be paid by insurance.

So if you get sick and your doctor runs tests to find out what the problem is and it turns out yuo have diabetes, the insurance should pay for those tests. But if you are going to take insulin for the rest of your life, that should be an out-of-pocket expense and not paid by insurance. It would be like having your car insurance pay to fill your gas tank.

It’s true for contraception and for any long-term predictable treatment. Childhood immunizations, yearly exams, PAP smears, any expense which is predictable should not be insured.

But wait! What if insurance is not just about risk?! Insurance companies can bargain with suppliers because they buy a whole lot. And they don’t have to bargain at the level of the individual transaction. “What price can you give me on a broken arm? A hip replacement? A liver biopsy?” They can negotiate great big discounts for themselves. You as a single customer can’t negotiate at all. “Oh, your arm is broken? I’ll fix that. You want to know how much it costs? I don’t know, that isn’t my department. You’ll have to talk to accounting, but they won’t know how much until after they find out just what I had to do. We’ll figure out the cost afterward and you can arrange financing.”

If your health insurance company can get a deal you can’t get, they can share some of the discount with you. In that case it’s very much worth having insurance. Another way to say it is that since insurance companies can negotiate great big discounts for themselves, the medical industry has to jack up your prices really high. You can’t afford to have any dealings with them unless you have insurance.

OK, so you want an insurance policy. You are one person buying one policy. The insurance company sells tens of millions of policies. Who is in the better bargaining position? They offer you a policy with a hundred pages of small print. You look at policies from 3 competing companies, 300 pages of small print and you decide which is best for you.

If you work for a company that has 1000 employees, your company is in a far better bargaining position than you are. They can get a better price. But then they say “Oh, we are morally opposed to people who eat a lot of sugar. You have Type 2 diabetes because of the sugar you have eaten. You should get a separate policy for that, or pay out of pocket.”

And it matters a whole lot whether they do that.

It isn’t just whether they pay it or you pay it out of what they pay you.

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MPAVictoria 07.08.14 at 1:29 pm

“A program that provides contraceptives to low-income women…

…contributed to a 40-percent drop in Colorado’s teen birth rate over five years, according to state officials. The… Colorado Family Planning Initiative, provides intrauterine devices (IUDs) or implants at little to no cost for low-income women at 68 family planning clinics…. The teen abortion rate dropped by 35 percent from 2009 to 2012 in counties served by the program…. Young women served by the family planning clinics also accounted for about three-fourths of the overall decline in Colorado’s teen birth rate during the same time period. And the infant caseload for Colorado WIC, a nutrition program for low-income women and their babies, fell by 23 percent from 2008 to 2013…”

http://equitablegrowth.org/2014/07/08/morning-must-read-german-lopez-colorado-offered-free-birth-control-teen-births-fell-40-percent/

If conservatives really gave a damn about abortion they would be handing out free birth control like Pez. The fact that they are not suggests they have other motives.

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Barry 07.08.14 at 5:01 pm

parsimon 07.04.14 at 6:37 pm

” John Holbo, I think your post is, or should be, a preliminary excursion into the issue at hand. This really isn’t just about women’s rights: it’s about religious liberty claims. The Court’s Wheaton College order signals that it’s willing to entertain the notion that a religious objection to some law or other is enough to exempt from the law not just the religious objector, but also anyone who might take that objector’s place.”

More importantly, it signals that the current SCOTUS majority is quite happy to rip up precedent for *certain* things. Note that they are granting exemptions for birth control – not abortion, but birth control.

The day that they issue massive exemptions for liberal ‘religious freedom’ is the day that I’ll take off those quotes.

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Barry 07.08.14 at 5:13 pm

Mainstreet Muse: “Please note: Hobby Lobby provides coverage for SOME contraception. The ones they object to are the murder weapons – like the IUD. SCOTUS extended the ruling to ALL contraception later, but Hobby Lobby wanted to isolate just a few. “

Those methods are legally not murder weapons, or abortion methods. SCOTUS broke new ground by declaring that (for birth control only), if a party believes that A is B, the court must act as if it were.

Now, some day, SCOTUS might extend that to other things. But for now, that’s the way it stands.

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Barry 07.08.14 at 5:13 pm

LHC “Though there is nothing about the Hobby Lobby holding that depends explicitly on the fact that this is contraception rather than some other health service”

Layman: “I honestly don’t know what you mean here. The Court found that the contraception mandate, specifically, violated RFRA; and specifically ruled out applying this reasoning to other health care services mandated by ACA. The holding certainly ‘depends explicitly on the fact that this is contraception.’”

At this point he’s just lying.

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e l k 07.08.14 at 5:57 pm

YES to J. Thomas @95:

“You as a single customer can’t negotiate at all. ‘Oh, your arm is broken? I’ll fix that. You want to know how much it costs? I don’t know, that isn’t my department. You’ll have to talk to accounting, but they won’t know how much until after they find out just what I had to do. We’ll figure out the cost afterward and you can arrange financing.’”

This is how it actually works. You don’t find out at the emergency room that your insurance doesn’t cover the treatment you need, because nurses and doctors can’t swipe your insurance card like a credit card and see whether it runs. You find out a couple months later, when you get billed for it. What about “maintenance?” Shouldn’t you be able to figure all of that out in advance? It’d be nice! But if you’re at a more routine appointment, and you’ve done your research to find out that the appointment itself will be covered, you still may not find out in advance (for example) that a basic blood test your doctor always draws will get sent to an out-of-network lab for analysis, where it won’t be covered.

Yes, it would be nice if we all had plenty of money lying around for random unexpected “maintenance” costs, but what happens isn’t that everyone makes sure to have enough money to pay for all of their routine medical costs at all times, because our medical costs are not dependent on our incomes (not in the “good” direction, anyway – there are poor health outcomes associated with low incomes, which makes it even worse). What happens is that when you don’t have enough money, you avoid non-urgent medical spending as much as possible. It’s pretty obvious that doing that with contraception, or even just trying to cheap out on rather than using the most suitable form for your body and lifestyle, could have even more expensive negative effects.

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WT 07.08.14 at 7:05 pm

J. Thomas — I’m not aware of any evidence that large employers or insurance companies or anyone else uses bargaining power to get the price of birth control pills down to some level lower than what drug companies want to charge. Can you provide any such evidence?

A possible example might be the $9-a-month birth control pills that are offered at Walmart, Target, etc., but I think that’s because they’re generics, not because of bargaining power per se.

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J Thomas 07.08.14 at 7:55 pm

I’m not aware of any evidence that large employers or insurance companies or anyone else uses bargaining power to get the price of birth control pills down to some level lower than what drug companies want to charge.

I’m not talking specifically about birth control pills, but about the total price they pay.

And no, I can’t possibly give you proof. For all I know, if you count up the retail price for everything a hospital does — $30,000 for a week in ICU, $250,000 for an open-chest heart operation, $5 for an ibuprofen pill in-hospital etc — maybe that’s what the insurance companies pay them.

And when you count up all the retail prices for all the pharmaceuticals that pharmacies dole out, maybe that’s what the insurance companies pay. I can’t prove otherwise.

Similarly, when IBM pays for health insurance for all its 100,000 US employees, maybe the price it pays is the sum total of what all those employees would pay if they got individual policies.

Do you believe that’s true?

103

e l k 07.08.14 at 8:28 pm

To illustrate this general principle: I have a recent bill from a medical appointment in which two line items were labeled “commercial insurance adjustment.” For both, this was an amount subtracted from the cost of the previous line item due to my having insurance. It definitely did not refer to the portion paid by my insurance, since I hadn’t reached my yearly deductible yet, so the insurance company wasn’t actually paying for anything. It was a straight up price reduction. (I didn’t walk out with any birth control, so it doesn’t directly answer that question, but yes, insurance companies do negotiate lower prices in general.)

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Ogden Wernstrom 07.08.14 at 11:00 pm

WT 07.08.14 at 1:26 am:

Paying for birth control via insurance is a bit silly — akin to paying for gasoline through one’s car insurance…

Fine, then – let’s call it something other than insurance, and leave the semantic arguments behind. (Aside from that, the analogy misses a lot. Car insurance does not cover routine maintenance, inspections, mechanical repairs, etc. My health care coverage has covered routine visits, periodic physical exams, orthopaedic surgery, physical therapy, etc. BTW, my car insurance will pay for orthopaedic surgery under some circumstances, too.)

…(a weekly fillup is far more expensive than any birth control, by the way). If you can’t afford a weekly fillup on its own, neither could you afford an “insurance” plan that paid for a weekly fillup.

Who is your audience? People who can afford to own and maintain automobiles probably do find the cost of contraceptives relatively trivial. But there are plenty of places that reproductive behavior can occur – it doesn’t have to be in the car.

Same for birth control.

Wrong. Pricing does not work that way. Health care organizations (many of which bear the names of insurance companies, I know) have been getting better pricing than individuals for a long time. Here, you will find a study by US HHS about this very topic. It is one of many sources available about the differential in prescription drug prices. If you want to dispute it, you are welcome to point out a source that proves otherwise.

It doesn’t really make much sense to say that an “insurance” policy should cover regular weekly or monthly expenses…

The quotes show me that you already want to stop calling it “insurance”, but your reasoning has me worried about all those people who have chronic conditions that are treated with regular medication. When a doctor prescribes an anti-inflammatory for someone with Crohn’s disease, they pay out-of-pocket, but to overcome short-term effects of an injury or reaction to exposure, the same drug can be covered? Would someone with ankylosing spondylitis have to pay for their many years of physical therapy, while my two months of PT to recover from an injury is covered? Hepatitis C patients will be really interested in where that line is drawn.

Or does the reasoning about regular periodic medical expenses apply only to slu…birth control?

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Main Street Muse 07.09.14 at 12:31 am

To WT… filling up the tank is indeed not the same as birth control pills. What do birth control pills do? Prevent pregnancy, a very costly medical procedure. They also allow FAMILIES the opportunity to plan out the size of their family, rather than go for the “19 and counting” family model.

When I was self-insured – family of five – we paid $600 a month for the privilege of paying the first $7K in medical costs. Our policy covered $300 per child for well-child visits – seems like this is sufficient right? Not so. For one well-child visit for my twins (in 2009, prior to ACA!), the doctor billed the insurance company $508 per child (so with twins, that meant more than $1K for the annual well-child visit.)

Here’s a breakdown of the costs:

-$79 for a polio vaccine
-$159 for the chicken pox vaccine
-$172 for the visit with the ped
-$37 to check out their development (strange this was not covered in the office visit fee, but oh well!)
-$39 administrative fee to administer the first vaccine (!!)
-$22 to administer the second vaccine (!!)

So if you think that everyone should be paying their own for vaccines, that will likely result in a lot of people not vaccinating their children.

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Ogden Wernstrom 07.09.14 at 4:43 am

WT 07.08.14 at 7:05 pm:

I’m not aware of any evidence that large employers or insurance companies or anyone else uses bargaining power to get the price of birth control pills down to some level lower than what drug companies want to charge. Can you provide any such evidence?

WT, I am not aware of any evidence that the cost of health coverage that lacks birth-control coverage is enough cheaper that the covered person ends up gaining enough to cover the retail cost of that same birth control. Can you provide any such evidence?

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