Phony War

As you might have heard, the US Supreme Court ruled 6-3 on the last day of its June term that corporations that are owned by religious people cannot be forced to violate their First Amendment rights of religious freedom by paying for contraception as part of their employee insurance coverage, all part of the war on women which is raging in American society. That is the conventional wisdom, and has been repeated in large part by Justice Ruth Ginsburg, Hillary Clinton and assorted other figures on the left.

Of course, not a single assertion above is true.

The US Supreme Court’s Hobby Lobby decision must have been written in Sanskrit, the only possible explanation – short of outright mendacity on the part of the commentariat – for the widespread distortion of the decision. First, the decision herein was, of course, 5-4, along the lines of the Court’s usual conservative-liberal split, but each subsequent statement is also false, as even a cursory reading of the decision demonstrates.

Second, the corporations in question were closely-held entities, meaning that they are usually family-owned small businesses, not large publicly-traded corporations like Coca Cola or IBM. These are businesses in which the owners have poured their sweat, hard work and, especially, their values, into the operation. They are governed by principles – religious ones, based on the Bible – which they hold dear and by which they live their lives. For much of American history, those families were cherished and considered the backbone of society.

Third, the biggest lie was this: There are 20 types of contraception for which Obamacare mandated that companies pay. The two corporations here willfully covered 16 of them, traditional methods of contraception. The only drugs (or devices) they refused to cover were those that, in effect, abort fetuses after conception. (Actually, those are not even “contraception” drugs but “postception” drugs.) These are abortion pills or devices, in essence, which a reasonable person might assume is not regularly used by any normal woman. Routine contraception is covered. How did I determine this? By reading the Justice Alito’s decision.

The Hahns and Conestoga sued HHS…seeking to enjoin application of the ACA’s  contraceptive mandate insofar as it requires them to provide health insurance coverage for four FDAS-approved contraceptives that may operate after the fertilization of an egg (Burwell v. Hobby Lobby, Page 18).

    That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests” (ibid, page 22).

As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, may result in the destruction of an embryo. By requiring the Hahns and the Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs” (ibid, Page 32).

Fourth, the decision was based not on First Amendment grounds but on the Religious Freedom Restoration Act, that was approved in 1993 by the House unanimously and by a 97-3 vote in the Senate, and signed into law by that well-known combatant in the war on women, Bill Clinton. The law decreed that the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The application to this matter is fairly straightforward, except for the fact that the contraception mandate was not even a “rule of general applicability,” as all religious corporations were exempt. Thus, the decision turned on an application (not even an interpretation) of a Congressional statute, and didn’t reach the constitutional issue. This too is explicit in Justice Alito’s decision: “Our decision on that [RFRA] statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns” (ibid, page 49).

What then evoked Justice Ginsburg’s shrill dissent, which began “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations…can opt out of any law (save tax laws) they judge incompatible with their sincerely held religious beliefs ”?

Several possibilities suggest. Politics is always at the top of the list, and the doctrinaire left insists on both the sanctity of certain rights and the obligation of others (individuals, governments) to pay for them. And abortion is today a sacrament in American life, a celebration of feminism, freedom, and liberty – albeit, not for the unborn. Obviously, many critics did not read or carefully read the decision. But the decision was so limited in scope – the Court did not even rule that these corporations have a right to refuse to provide regular contraception if such violated their religious beliefs, and that was not at issue here – that it is hard to understand the hysteria that has been generated.

Equally hard to understand is the obsession with having others pay for one’s freedom to indulge certain optional behaviors. Even contraception is unnecessary unless one performs certain actions that might induce an undesired pregnancy. Why should that be covered by insurance at all? It is an optional behavior that surely is not applicable to all. It is the third-party payor system that has distorted the health coverage industry in America, driven up premiums to astronomical and unaffordable levels, and engendered the Obamination of Obamacare. Can’t anyone pay out-of-pocket for anything anymore? Can’t people take responsibility for their own lives? Many physicians maintain that a glass of red wine with dinner is healthful and thwarts a variety of maladies, so should government or insurance companies be ordered to pay for a nightcap, every night, for everyone? Before you say “yes,” bear in mind that is absurd.

These mandates introduce even more chaos and inequity into a system that is already chaotic and inequitable. Should every person have to pay a higher premium because some need pregnancy care (what about a single man??), child dental coverage (what about people without children?), drug counseling, psychological care, etc.? Why can’t people just pay for what they want – as if out of a menu of choices – or pay for routine matters themselves and save the insurance for catastrophic needs?

That would make sense, but it is anathema to the know-it-alls who run the nanny state.

The tampering with religious freedom in America and its temporary salvation by the Court here should awaken everyone to the dangers ahead. Already, businesses have been fined for not servicing customers whose moral choices (e.g., same sex marriage) offend them. Caterers, florists, and photographers have been prosecuted for not participating in these festivities that violate their religious beliefs. Absent decisions like this, the day is not far off when synagogues might be forced to host same-sex marriages, intermarriages, or other relationships that violate Jewish law. Opposition to same sex marriages today is construed as immoral. Tolerance has become a one-way street, and the Court merely stuck its finger in the dike. It should not be taken for granted.

That the decision was 5-4 is a cause for grave concern. The loss of even one conservative justice could transform American society in heretofore unimaginable ways. That is something to ponder as the fall elections draw near and the 2016 presidential election looms. Assuredly, the next president will be replacing some of the conservative justices.

In the interim, this decision – so measured, so obvious – has been castigated by all the usual liberal suspects. It reflects not the bogus “war on women” but the very real “war on intelligence” that has won many battles already and re-shaped the American polity.

7 responses to “Phony War

  1. Turning to the question of arming the Jews,
    [Winston] Churchill said [in year 1940 CE] that:

    “It might have been thought a matter for satisfaction that the Jews in Palestine should possess arms, and be capable of their own defense.
    They were the only trustworthy friends we [the British] had in that country and they [the Jews] were much more under our control than the scattered Arab population.”

    SOURCE: Churchill and the Jews (chapter 15,
    pages 169 to 170) by Martin Gilbert, year 2007 CE

    Winston Churchill was British Prime Minister
    from 1940 to 1945 CE and from 1951 to 1955 CE.

  2. Determined to keep Jews from Palestine, on 12 May [1942 CE] Haj Amin [al Husseini, the Mufti* of Jerusalem] asked Hitler to press the Bulgarian government not to allow the [Jewish] children to leave. His intervention was effective. On 27 May [1942 CE], Clifford Norton reported from Berne that the Bulgarian government “have now decided, under German pressure,” to close the Bulgarian Turkish frontier “to all Jews.”

    * NOTE: A mufti is an Islamic scholar and interpreter of Islamic religious laws.

    SOURCE: Churchill and the Jews (chapter 17,
    page 194) by Martin Gilbert, year 2007 CE

    Winston Churchill was British Prime Minister
    from 1940 to 1945 CE and from 1951 to 1955 CE.

  3. Speaking of the Arabs [in year 1944 CE,
    Winston] Churchill remarked that:

    “They [the Arabs] had done very little [to help fight Nazi Germany],
    and in some instances had made things difficult for us.”

    SOURCE: Churchill and the Jews (chapter 18,
    page 205) by Martin Gilbert, year 2007 CE

    Winston Churchill was British Prime Minister
    from 1940 to 1945 CE and from 1951 to 1955 CE.

  4. Gregory alibert

    Dear rabbi
    Do you know that some women and I’m talking about religious orthodox ones who takes contraceptive pills, can become pregnant anyway . So not only the kind of women that you seem despised, would have benefit of those post conception pills.
    Second of all, you agree that a person should have the right to refuse to serve a customer who has a way of life offending at his yes. Would you accept a businessman to refuse to serve an orthodox Jew because he found Brit milah a barbaric act who hurt an innocent individual?

    • 1) Those who need the pills can buy them. Period.
      2) This point is not relevant to my post, but now that you’ve asked: whoever does not want to do business with me just induces me to go elsewhere. His loss.

  5. Its actually to our benefit that the 4 liberal Justices, and certain media outlets, portray the decision as sweeping as they did. Let that characterization sweep into the public conscious, because that then becomes, in effect, what the case says. I practiced in big law, and now am corporate counsel for a top tier Fortune 500 company. Policies are made by ordinary HR type people, who don’t scrutinize the case as carefully as you do. Likewise, EEOC investigators don’t know much about cases than ordinary HR types. If these front line people are convinced that the Supreme Court made a sweeping statement that corporations can refuse laws (save tax laws) that violate their religious beliefs, than that is the effect it will have, even if a close inspection shows it to be much more limited.

    There are many examples of this on the other side of the ledger. Its good to have some on the other side too.