The Supreme Court today heard oral arguments in the Hobby Lobby case, in which the craft store chain is suing for exemption from the Affordable Care Act’s contraception mandate. According to Hobby Lobby, it has religious objections to certain forms of contraception, and so should be exempt from the mandate on First Amendment grounds. According to Dahlia Lithwick – who is usually pretty good at this sort of analysis – the oral argument didn’t go well for the government. Conservatives on the court were signaling their support of Hobby Lobby, and Justice Roberts even has a way to apply the case narrowly (by declaring that only tightly-controlled or family-run companies can make the religious-objection argument). This case has broader implications than it might look like on the surface.
Set aside the status of corporations as persons. In a different piece on Slate, Margaux J. Hall points out that there’s a deeper question in play: why do we allow employers to have such power to determine employee’s health care? Employees pay for their health insurance, and it’s part of their compensation package, and yet they have almost no power to decide what’s covered:
“Why does health insurance actually belong to the employee? Because the employee pays for it—directly and indirectly. Though both employees and employers generally co-finance insurance premiums (in 2012, employees reportedly paid an average of 18 percent of individual plan premium costs, and 39 percent of family plan premium costs), employees functionally fund 100 percent of premium payments. In other words, employers’ health insurance premium contributions are not philanthropic investments—they are part of an employee’s net compensation package. There is a clear wage-benefit tradeoff at work in the case of employment-based health insurance. Economic research shows that employers make fewer investments in real wage increases when they increase their health insurance premium contributions. Seen this way, employers should not be permitted to spend employees’ remuneration in ways that subvert those employees’ interests.”
It seems to me that the combination of Lithwick’s and Hall’s discussions indicate real risks of a decision in favor of Hobby Lobby. Here’s two:
(1) The government argued today that such a decision would open up a huge can of worms, as employers would immediately begin excusing themselves from other parts of federal law. What about vaccines? Minimum wage? It seems to me that this sort of question – pressed by Justice Sotomayor – underlines one crucial point: there is a public interest in healthcare (and minimum wage, etc.). Justice Scalia claims that the so-called Religious Freedom Restoration Act does not require that the interests of others be balanced against religious objectors: “If they wanted you to balance the interest of the religious objector against the interest of other individuals, they made no reference to that in RFRA at all.” That might be true, but of course it shouldn’t insulate the RFRA from constitutional analysis. At the very least, it's probably evidence in favor of the (broadly) Foucauldian thesis – see this book by Nikolas Rose – that we as a society are moving away from viewing health as a public concern.
(2) If healthcare is conceptualized as compensation, then the door will be open to employers trying to regulate what their employees do with their paycheck. Indeed, there’s evidence of mission creep in this case: apparently the Hobby Lobby position includes an attempt to stop employees from visiting doctors even to talk about contraception. So employer RFRA rights apparently trump the free speech rights of doctors, and the doctor-patient relationship (there is of course precedent for this when states try to mandate that doctors narrate or show images from transvaginal ultrasounds to women seeking abortions. These are not doing so well in court). It's not clear to me why that mission creep wouldn't continue.
The contraception mandate is very popular. That it is apparently vulnerable to the sorts of objections being raised by Hobby Lobby doesn’t just show us the difficulties of the current court’s conceptualization of corporate personhood. They show that, as a society, we have forgotten that corporations depend for their continued existence on all sorts of public provisions (like roads, the property-rights and contract systems. Little things.), and that it’s perfectly reasonable to say that there is a legitimate quid pro quo. In other words, society and communities are stakeholders in corporations. So even if you oppose contraception, I think there’s good reason to be bothered by this case.
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