Hobby Lobby: Selling Pandora by the pound
The case of Burwell vs. Hobby Lobby may well be one of the most sensational and controversial lawsuits in recent times. While the jury's decision (in favor of "closely held for-profit businesses - those with at least 50% of stock held by five or fewer people, such as family-owned businesses - in which the owners have clear religious beliefs") (1) was widely celebrated by religious adherents as "freedom of religion", many other people see it as a highly dangerous and controversial decision "that has the potential to generate much mischief in the years to come" (2). "The Supreme Court is endangering the health care of many Americans based on the fictitious idea that a corporation has religious convictions," said David Niose, legal director of the American Humanist Association's Appignani Humanist Legal Center. "By expanding the rights of corporations, this court is in fact contracting the rights of hard-working Americans who expect full health care coverage as required by law." (3) One could also question why a company like the Hobby Lobby might feel the need for the promulgation of religious ideology instead of contenting themselves to selling their wares, providing employment and making a goodly profit?
It might not be so well known or widely covered, but the Hobby Lobby is far from the only company that challenges its duty to provide health care (and specifically, birth control) to its employees: "since February 2012, 71 other for-profit companies have challenged the ACA's contraceptive mandate in court, according to the National Women's Law Center (NWLC). The majority of these for-profit cases (46 in addition to Hobby Lobby's) are still pending" (4). Footnote (5) provides a link to a list of all cases.
So what exactly is being denied female Hobby Lobby employees? Section 513 of the Affordable Care Act looks at "personal responsibility education" regarding, among others, "both abstinence and contraception for the prevention of pregnancy and sexually transmitted infections" (6). Note that this puts the responsibility clearly at an individual, personal level. In the pursuit of this personal responsibility, a woman might find it advisable to use contraceptives, like the so-called "morning after pill" or an intra-uterine device. "The Hahn family, owners of Conestoga, and the Green family, owners of Hobby Lobby, said some of the mandated contraception prevent human embryos from being implanted in a woman's womb, which the plaintiffs equate with abortion. That includes Plan B contraception, which some have called the "morning after" pill, and intrauterine devices or IUDs used by an estimated 2 million American women." (1)
There are two main types of IUD:
*) Copper IUDs primarily disrupt sperm mobility and viability and effectively prevent sperm cells from reaching an ovum
*) Hormonal IUDs release a tiny amount of levonorgestrel, which thickens cervical mucus, rendering it impenetrable to sperm cells
As we can clearly see, both devices actively prevent sperm cells from penetrating - or even reaching! - the ovum. If we go ahead with the Green family and define "life" at the moment of "conception" (that is, the moment a sperm cell permeates an ovum and becomes a zygote), this is no murder as the gamete fusion simply hasn't taken place yet. Or would they already define an individual sperm cell or ovum as "life"? Disabling these might be deemed sinful but at least it doesn't constitute "murder" (although one could discuss about whether a zygote really equals a human being). In that case, we would all be serial killers.
Emergency postcoital contraception known as the "morning after" pill acts a bit later in the process, as it stops the ovulation or development of the zygote for a period of up to 5 days. (7) If we stick to our definition of "life" as starting at ovum penetration, this would indeed constitute "murder". But remember that a significant percentage of pregnancies naturally terminates during the first weeks: this would make every woman an unwitting murderer. I am not so sure we should pursue this line of thought as it seems extremely counterproductive and silly. A last consideration: if a female employee doesn't have access to birth control and gives birth to a baby, this brings additional costs in child care and education, also for the employer. (10)
But all of this is unimportant in the end. If the bible would state something along the lines of "life starts at conception, when a male sperm cell and a female egg cell merge", all would be clear. But nowhere in the bible do we find anything even remotely like this. Why? Because these writings stem from 2000-3000 years ago, when all of this knowledge was not available yet. That took science - microscopes, autopsies, experiments etc. Even 600 years later, in the quran, the description of fertilization (2 lines in all) is still extremely muddled and imprecise. This means that any opinion on the sanctity of human life from the moment of conception is in the end a personal opinion (to which one is obviously entitled), and emphatically not a religious tenet. One could even argue that the bible contains an abortion ritual (Numbers 5:22-27): by drinking poison, the pregnant woman's body is forced to reject the foetus.
The result of the court's decision: "A corporation's "right" to religious freedom gives them the right to control, not only their own decisions, but the decisions of the people who work for them." (8) But isn't this opening Pandora's box to unleash all sorts of unwanted and discriminating behaviour? Indeed, the point was soon made: a Jewish man visiting a Hobby Lobby store looking for Hanukkah decorations couldn't find what he was looking for. Upon inquiry, he was tersely informed that "we don't cater to your people". A friend of the customer, a mr. Berwitz, made a call to the Hobby Lobby information desk and was blithely informed that the Hobby Lobby does not sell Hanukkah goods "because Mr. Green is the owner of the company, he’s a Christian, and those are his values". This by the way in the town of Marlboro, New Jersey, where a substantial part of the population is Jewish. (9) Does this still fall under the nomer of religious freedom? So what is next? A shopkeeper who's also a KKK member might reasonably refuse to serve blacks. Muslims might justifiably decline to serve non-muslim customers, as these are all heretics and apostates who deserve to be stoned, according to a literal reading of their faith. Scientology adherents are averse to psychological treatment, so they could want to exclude psychiatric care from the bill (10). Atheists, humanists, single mothers, gays, lesbians, transgender people, Jews, Muslims, Mormons... depressingly, there is probably no group of people whatsoever that isn't blacklisted by some religion or other. Before we know it, we will be back in Germany during the 1930s, where a discreet sign at the entrance of a shop informed dogs and Jews they were not welcome. Welcome to 21st century America? This seems too preposterous for words, yet arguably a shopkeeper would have a valid reason for his refusal: the bible, his holy book, clearly states that Jesus Christ, who came to redeem the world by dying for our sins, was murdered by the Jewish people (which is really hardly surprising, as he was a Jew himself). Are we oppressing religious freedom by denying his right to express his faith? As Jaclyn Glenn states in a video addressing the issue: "you can't have freedom of religion without freedom from the religious beliefs of other people" (10). Imagine what could happen if America at some point would get a Mormon president, who would be keen to reform health care according to his scripture. Or even a Scientologist who would abrogate health care altogether and introduce new laws obliging all members of the public - including the Green family - to visit the Scientology webshop instead, where a whole range of suitable (and obviously, scientologically approved) products is available. The Greens would scream blue murder about having their religious freedom impinged. A somewhat farfetched example perhaps, but it could happen if anyone in a position of power had the right to force their religious beliefs on others - and as the owners of a large conglomerate of stores, providing jobs and indirectly, health care to some 23.000 Americans, the Green family definitely has this position of power. It could even become a life-or-death issue, as we recently saw in the case of a pregnant Jehovah's Witness who refused an essential blood transfusion and died along with her unborn child. Other parents who refused their children medicinal care for religious reasons saw their own children die. Religious freedom or murder?
The 1964 Civil Rights Act made it unlawful to discriminate against, among others, any individual's religion (11). It is very strange that since June 2014, this law seems to work only in one direction, as companies (now with the same rights of "religious freedom" as individuals) can wilfully discriminate on the ground of their beliefs, thereby impairing or even discriminating against their employees. Any for-profit company is a microcosm and should ideally be seen as a reflection of society as a whole. This means equal working opportunities for everybody. It is astounding that in our time employers still want to enforce the right to determine what goes on in their employee's bedroom. And please note that this only goes for female employees! The same ACA also covers viagra and vasectomies, the one to boost male sexual performance (obviously no problem, as the Catholic church actively endorses procreation), and the other a medical method for male sterilization and/or (semi-)permanent contraception (12). Intriguingly, these weren't even mentioned in the lawsuit. Preventing ejaculation has exactly the same net result as using an IUD, but somehow it is only offensive or sinful if it is a woman doing the preventing. That sounds dangerously like another flagrant breach of the 1964 Civil Rights Act to me.
A reopening of the discussion on a company's questionable right to "individuality" might be an excellent idea; the court's decision can still be reversed. I hope the Green family understands that by doing this, religious freedom is far from threatened; indeed, it grants more freedom as it puts personal responsibility back to where it belongs - the individual. In other words: plural religious freedom will benefit. But maybe this is not exactly what the Green family has in mind.
Another possible solution out of this quagmire would be to relieve employers altogether of the obligation for their employees' health care. This would necessitate introducing independent and universal health care for every citizen of the USA, regardless of social background, age, gender and employment (or indeed, employer). We could even include a tailormade "religious" variation, where people - as an individual, conscious and voluntary choice! - can choose a package not including so-called murder weapons. A lofty ideal perhaps, but it's a path that many countries have already successfully taken, and in the light of the many not-so-imaginary monsters lurking behind the door currently ajar it might be a very good idea to reexamine the feasibility of a purely democratic health care system equally benefiting every citizen. E pluribus unum.
(2) Rob Boston: Birth Control Bungle - The Supreme Court's Appalling Ruling on Access to Contraceptives (The Humanist, September/October 2014, pp 36-37)
(6) Affordable Care Act: https://www.congress.gov/bill/111th-congress/house-bill/3590
(7) Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy (James Trussell, Elizabeth G. Raymond & Kelly Cleland, 2015)
(10) Jaclyn Glenn: Hobby Lobby Hates Women & Loves Jesus https://www.youtube.com/watch?v=20w0C2fZ874