Normally, Barataria takes up a hot news story after the mainstream press has released its authoritative take on the subject and social media has frothed over it for a while. Not the Burwell v. Hobby Lobby decision. I have to admit, I’m confused by this decision because it seems to be incredibly vast in its potential scope, a position echoed by Justice Ginsburg in her dissent. That dissent even became a song as people around the ‘net struggle to make sense of this.
If there has been a legal earthquake, it will do what upheaval and disaster always do – highlight how everything has changed and eventually demand systemic responses. This decision, if nothing else, shows how utterly ridiculous it is to have the cost of health care foisted onto businesses in the first place. Beyond that …. it’s hard to tell just what it means.
We’ll start with the facts. The majority opinion ruled that Hobby Lobby cannot be compelled to provide contraceptive care for female employees if it violates their religious convictions. It’s still not clear if it applies to all contraception or the issuse at hand – IUDs and “Plan B” contraception which prevents a fertilized egg from successfully implanting.
But the court chose to rule more broadly than that. Justice Alito wrote in the majority opinion, “The purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”
Exactly what is a “closely held corporation” is unclear, but this decision was built on the foundation of corporate personhood. And that brings up a whole host of issues, mostly as to whether this is limited to health care or if it can be more broadly defined.
For example, say the owner of all the shares of an LLC (thus “closely held”) food store is a devout Moslem and doesn’t want someone described in their faith as “unclean” handling food. Would that be OK? How about denying admission to the store to people who are “unclean”? Or, let’s go there, having them sit at the lunch counter?
And does this apply to all faiths, or just Christians? Does the First Amendment weigh in at some point?
But perhaps this only applies to health care. Does it logically follow that any small business owner that really hates Obamacare should now convert to Christian Science, a faith that does not believe in modern medicine? How does Equal Protection, a concept so heavily favored by Justice Roberts that it easily uncorked Marriage Equity in many states, apply to different medical needs by different genders? Why did corporate personhood, a new invention, trump centuries of rulings on equal protection? Does corporate personhood trump female personhood?
That’s where Justice Ginsburg’s dissent comes in. “The court, I fear, has ventured into a minefield,” she wrote, and described at least some of that minefield in very explicit terms. “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”
That should be obvious, but it wasn’t to five members of the Supreme Court. The definition of a “corporation” is what is at stake here, and that’s going to have to be defined socially and legally by a process that involves everyone. And if that really came up before Congress, possibly as an Amendment, every survey on the topic shows that a vast majority of Americans think the idea of corporate personhood is ridiculous.
But let’s go back to health care, the topic that opened this. If you believe in the free market, where people choose options based on trade-offs between cost and quality, the system we have now is far from your choice. Corporations should not foot the bill because, simply, they are not the ultimate consumer. If you believe that health care is a fundamental right, the system we have now is obviously broken in many ways. If there is one thing that everyone should agree on, left and right, it is that Hobby Lobby shouldn’t have to make these kinds of decisions.
If the implications of this decision send us into any minefield that’s worth straying into it’s revisiting just how we organize health care. That holds whether corporations really are people or not – but, for the record, women are (in case there was any confusion).
Where do we go after this decision? It’s hard to say. What logically should happen on many fronts is an intense public debate on the various issues and serious action taken by Congress. Imagining either of those happening requires something like a civic fairy tale.
In short, the ultimate message from the Supreme Court is this – it’s long past time for a serious revolution, one way or the other. If the system can’t handle it, the system as we know it has to be brought down. If it isn’t, the precedents are all there for even more ridiculous things to start happening, and soon.