SCOTUS Hobby Lobby ruling isn’t about Religious Freedom vs. Access to Care. It’s about the Individual and Employer Mandates.

Image Credit:  Mark Fischer

Image Credit: Mark Fischer

The Supreme Court of the United States ruled today that under the protection of the 1993 Religious Freedom Restoration Act (RFRA), for-profit corporations that are “closely held” may not be forced by the federal government to perform actions that violate the religious beliefs of the owners. The particular forced action that sparked the lawsuit was a requirement in the Patient Protection and Affordable Care Act (ACA) that required employers to offer plans with coverage for contraceptives that includes methods that operate after conception. The owners of Hobby Lobby consider those particular contraceptives to constitute an abortion, and Justice Alito’s majority opinion found that forcing them to provide such methods of birth control “substantially burden[s] religious exercise” of the owners.

The decision brought swift reactions from the American right and the American left. Two potential 2016 Presidential candidates, Sen. Rand Paul (R) and Sen. Elizabeth Warren (D), exemplify each of the wildy divergent reactions:


Senator Paul views the issue through the lens of the religious freedom of the owners of Hobby Lobby and other private businesses that have been required by law to actively take part in the practice of what they consider to be abortion by directly funding it. Like Justice Alito and the majority court, he thinks that the government is limited in what it can force people to do, whether or not they are acting through a company.

Senator Warren, in contrast, views the issue through women’s rights and their freedom to choose a health care plan that covers what they might consider to be basic care. She thinks that corporations are limited in what they can force people to do.

Isn’t there a common thread here? Both Senators Warren and Paul are concerned about forcing people to do things they don’t want to do, whether it is paying for healthcare they find objectionable, or paying for healthcare they find lacking. There is something more to this than the “religious freedom vs women’s rights” narrative that is bouncing around the blogosphere, twitterverse, and punditry.

The fundamental issue is a restriction of liberty upstream from this decision: the individual and employer mandates of the ACA.

Those mandates were a novel legal construct — which is why, not long ago, we had a similarly dramatic court decision over the ACA’s individual mandate. Never before had the federal government forced people to purchase something just because they were alive.

And we’re beginning to feel the bitter, dividing consequences of such a far-reaching interference with free association. From the perspectives of the freedoms of conscience and of association, the ACA is proving to be worse — immeasurably worse — than single-payer would have been.

The previous unfreedom of forced purchase is creating irreconcilable conflicts where no justice is possible. The employee is required by law to purchase a service. The employer is required by law to help pay for it. Are we going to require by law that they agree on which service is appropriate?

Someone in this situation is going to feel violated. All we’ve done today is swapped which group feels the violation.

We’ve created a tangled mess of unfreedom and division, and we can’t solve it unless we recognize that the fundamental issues are upstream from the political soup du jour.

Let’s conclude by returning to Justice Alito’s majority opinion:

The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest.

In other words: the Court found no problem with the government trying to grant women access to these methods of family planning. The problem was that the way in which it was done was strongly illiberal.

This shouldn’t be a partisan issue about whose freedom matters more. This is about the structure of American liberty itself. And that structure has proven itself to be undermined in a serious way by recent law.