Wednesday, March 26, 2014

Our feudal masters seek religious Liberty;PBS Newshour, Scott Lemieux, and Jeffrey Toobin on Hobby Lobby oral arguments

I have to outsource some blogging work to Scott Lemieux: Terrible Arguments Against the Contraception Non-Mandate: Ladies Against Women Edition
I’m still making my way through the Hobby Lobby oral arguments. In the meantime, let’s look at the Independent [sic] Women’s Forum’s inadvertently instructive arguments against the contraception non-mandate. Let’s throw out the first non-sequitur:
“These cases do not represent a conflict between religious employers and female employees. Women have been and will continue to be free to seek out and purchase the contraceptives of their choice,” IWF Health Policy Director Hadley Heath said.
It is true that granting an exemption would not result in the literal banning of health care. It does not follow, however, that the IWF position does not represent a conflict “religious employers and female employees.” Female employees will be denied a statutory right if the Court accepts the arguments made by the IWF. (A burden that does not just affect the interests of women, either, unless men no longer have any legal or moral responsibility for raising children.) The denial that’s there’s any conflict is particularly rich given that Hobby Lobby et al. are asserting that a “substantial burden” has been created by provision that doesn’t require them to do anything.
Instead, these cases illustrate the inevitable conflicts that result from too much government involvement in health care. The contraception mandate works contrary to women’s interests.
Ah, and once again, we have the show given away. These legal arguments aren’t really about religious freedom; there’s just the latest in a series of ad hoc assaults on the ACA by conservatives who simply oppose the non-affluent having access to health care in principle. The dash of Orewellian nonsense on top is a nice touch, though.
So how does the employer non-mandate work contrary to the interests of women?
Personal health care decisions should be in the hands of free patients and doctors, not prescribed by one-size-fits-all mandates.
Well, fortunately, the requirement that insurance plan cover contraception leaves health care decisions in the hands of patients or doctors. This is one of the many things that makes it preferable to the IWF’s position, which would involve interposing the religious beliefs of employers between patients and doctors.
As for the silliness about “one-size-fits-all” mandates, once again it proves too much. If taken seriously, it would apply equally to any requirements that insurance cover specific things. According to the IWF, employers should get tax benefits for paying employees in health care instead of wages, but requiring that this insurance actually cover things is bad because FREEDOM! They’re welcome to this nutty argument, but neither RFRA nor the First Amendment enacted a free-floating consevertarian opposition to the concept of regulating health insurers.
“This case is about much more than contraception. It is about the principles of liberty that animate our Constitution.” Indeed! Which is why the IWF’s arguments should be rejected.

As Corey Robin would point out; every business owner a feudal master demanding power and control over their employee's if you buy the "religious liberty" argument.

Another reporters take worth a look is Jeffrey Toobin The Supreme Court's Women Justices Take On Hobby Lobby : The New Yorker :
There were two lessons from Tuesday’s argument in the Hobby Lobby case in the Supreme Court. First, it’s very important that there are now three women Justices. Second, it’s even more important that it takes five votes to win.
The issue in the case is straightforward. The Affordable Care Act requires employers who provide health insurance to their employees to include coverage for contraception. The owners of Hobby Lobby, a large (thirteen-thousand-employee), privately held chain of stores, regard certain kinds of birth control (like the I.U.D. and morning-after pills) as forms of abortion, which is against their religious principles. Does the employees’ right to choose and obtain birth control trump the employer’s right to religious freedom?
There was little doubt where the Court’s three female Justices stood. After Paul Clement, the lawyer for Hobby Lobby, began his argument, twenty-eight of the first thirty-two questions to him came from Ruth Bader Ginsburg (four questions), Sonia Sotomayor (eleven), and Elena Kagan (thirteen). The queries varied, of course, but they were all variations on a theme. The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power. Sotomayor asked, “Is your claim limited to sensitive materials like contraceptives, or does it include items like blood transfusion, vaccines? For some religions, products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?” Clement hedged in response. When Clement asserted that Hobby Lobby’s owners, because of their Christian values, did care about making sure that their employees had health insurance, Kagan shot back:
I’m sure they want to be good employers. But again, that’s a different thing than saying that their religious beliefs mandate them to provide health insurance, because here Congress has said that the health insurance that they’re providing is not adequate, it’s not the full package.
Indeed, Kagan recognized that Clement’s argument took on much of the Affordable Care Act, not just the contraception provision. “Isn’t that just a way of saying that you think that this isn’t a good statute, because it asks one person to subsidize another person?” she asked. “But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, ‘No, I don’t want to give that,’ that woman is quite directly, quite tangibly harmed.”

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