As usual, the Supreme Court has offered provocative statements about the nature of liberty right before our annual Independence Day celebration. The high court routinely waits to publish its most contentious decisions to the final days of its calendar, as those cases usually take the longest for the nine justices to resolve.
Like many cases that come before the Supreme Court, these final decisions almost always grapple with competing claims to liberty and either the protection or overreach of government power, but these have such significance and such passionate advocates on all sides that they drive public debate through the Fourth of July celebrations and the summer, and perhaps for years onward.
This week did not disappoint in that regard. In its final week, the Supreme Court’s remaining work actually showed a surprising amount of unanimity. In a 9-0 ruling, the court slapped down President Obama’s intrusion on legislative authority by invalidating decisions made by recess appointments. Also unanimously, the court ruled that police need a warrant to search cell phones confiscated in an arrest.
In a surprising 9-0 decision, the court struck down a Massachusetts law requiring a speech-free zone of 35 feet on public property around abortion clinics, ruling that the state did not attempt less-restrictive remedies rather than infringe on First Amendment rights.
All of these decisions dealt with the issues of constitutional rights and privileges balanced against competing interests of the government, or between its co-equal branches. The same is true for the most controversial of all the decisions this week, the 5-4 ruling in Burwell v Hobby Lobby et al that allowed three companies to opt out of providing emergency contraception and two devices under the HHS mandate because of religious objections.
The wailing and gnashing of teeth from the Hobby Lobby decision in the media and the political elite far exceeded the reaction on all of the other Supreme Court cases last week combined. Ironically even though the HHS contraception mandate involves the smallest stakes of all – access to contraception, which is such a small problem that not even the CDC can detect it as any significant reason for unplanned pregnancies.
The problems inherent in the HHS contraception mandate and the balancing of power and liberty stem from its core: Obamacare. The law, officially known as the Patient Protection and Affordable Care Act, sets up the first peacetime federal command economy in American history. It forces Americans to buy health insurance not as a consequence of a voluntary use of public resources (such as an auto insurance requirement for using public roads), but simply for living in the US. HHS and the IRS determine what satisfies that mandate, and force businesses with 50 or more employees to provide insurance coverage or pay stiff fines. HHS also gets to determine, based on an unconscionably wide grant of authority from Congress, what health insurance plans must cover.
It’s this forced participation in Obamacare that creates the imbalance between the religious liberties of individuals, business owners, and religious organizations on one hand and the power of the government on the other. Critics of this decision have mainly focused on the legal consideration of corporations as persons for the sake of considering their inherent rights, but there is nothing at all novel about that legal doctrine.
The novelty is the all-encompassing federal power in a command economy that none can escape without serious penalty. It is this new power structure that allowed HHS to pass arbitrary regulation that step all over areas that clearly fall within the bounds of religious expression, such as the freedom not to participate directly in contraception or abortion.
Of course, one cannot expect to get off the hook by simply claiming that a federal regulation impedes on one’s religious belief. Congress specifically addressed this balancing act between religious liberty and the need for regulatory authority in 1993 with the Restoration of Religious Freedom Act (RFRA), on which the Hobby Lobby case largely hinged.
Congress passed it unanimously in the House and 97-3 in the Senate after the Supreme Court’s Employment Division v Smith decision refused unemployment benefits to two Native Americans fired for having used peyote in their rituals. Religious expression should only be “substantially burdened,” Congress responded in nearly one voice, “in furtherance of a compelling governmental interest,” and then only by “the least restrictive means of furthering that compelling governmental interest.”
That applies to health decisions as well. As Justice Samuel Alito noted in his Hobby Lobby decision , other mandates for coverage meet this test, explicitly noting items such as vaccinations and blood transfusions. Blood transfusions are necessary for survival in some cases, while vaccinations are not just critical for individual health but also communal health, as thousands of studies confirm.
These examples show, though, just how silly and insubstantial the contraception and sterilization coverage mandate is in terms of compelling government interest. Contraception in almost all of its forms is inexpensive and widely available. Furthermore, although HHS considers contraception preventive medicine, it doesn’t prevent disease or block the spread of contagion, unless one considers babies a plague.
Besides, there is no crisis in accessing contraception. As noted above, the CDC’s 26-year study of unplanned pregnancies (1982-2008) shows that 99 percent of all sexually active women seeking to avoid pregnancy accessed contraception. Access to contraception is such a non-issue that the word “access” only appears once in the entire report, and that in a footnote about access to health insurance. So despite all of the shouts of doom, nothing in this decision impacts the already-universal access to contraception Americans have had for the last four decades.
Furthermore, even if this were some kind of contraception-access crisis in the US, HHS chose the most burdensome method of addressing it. The federal government already subsidizes contraception for low-income Americans through Title X; the Obama administration or Congress could have expanded that program. They could have reclassified birth-control pills as over-the-counter rather than requiring a prescription, as Bobby Jindal and other Republicans have proposed.
Instead of trying those intermediate remedies, HHS instead forced employers and their insurers to provide contraception for free regardless of their religious beliefs, while at the same time arguing hypocritically that any resistance to that idea was tantamount to interfering in a private transaction between a woman and her doctor.
The Hobby Lobby decision restores the proper balance to the competing claims at issue. It rationally assesses the state’s interest in contraception with a core constitutional right of religious expression, and rightly concludes that the latter prevails. No one will lose access to contraception in this transaction. Employers who willingly covered those costs (as many as 85 percent employer provided group plans did) can choose to continue to do so.
People who want contraception can choose to access it themselves. And those whose religious principles keep them from directly participating in contraception and sterilization can choose to live their faith fully in their lives.
That’s a pretty good way to start our celebration of independence and liberty.
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