The Supreme Court is releasing its decision in one of the more contentious and consequential cases to come before it this year, that of Burwell v. Hobby Lobby Stores, Inc. At issue is whether, under the Religious Freedom Restoration Act of 1993, a business may decline to provide coverage for artificial birth control to its employees, if said business has a religious objection to said birth control. It’s yet another instance of an unworkable, hasty diktat from the unworkable, hasty Affordable Care Act.
I suspect the outcome will largely depend on whether Justice Kennedy burnt his toast the morning he sat down to write his opinion.
One the one hand, the Court may rule that conscience protections afford a business the latitude to decline coverage for potentially objectionable methods of birth control. Certain drugs and intrauterine devices may have an abortifacient effect upon an already-fertilized embryo, which would make the business complicit in an abortion. For a believer, enabling the sin of another is just as damning as committing the sin personally. This means that a business owner could well find himself in the position of having to choose between his company and his conscience – which to a serious adherent is no choice at all.
It does, however, represent a fairly egregious bit of compulsion on the part of the government. Under the ACA, there is no wiggle room for a company like Hobby Lobby to exercise its religious liberty. Under the law, a religious person would be forced out of business and swept out of the public realm.
One can find this specific example a trifling scruple and still appreciate that in this country, we are assured of certain rights by dint of our existence as free men. These rights come not from some wellspring of government beneficence but from our Creator, and are therefore non-negotiable. The right to free exercise of religion is one such. Note that this is not the same as a “freedom of worship,” which is Mr. Obama’s artful dodge. Free exercise of religion, and all that religion might require of the adherent, includes the freedom to do business as a believer.
The Court might also rule that Hobby Lobby’s religious objections do not outweigh the somewhat more recently-minted right to artificial birth control on an employer’s dime. To hear some tell it, this right – with which women were endowed by their President – is necessary to triumph over the institutional sin of “discrimination.” Never mind that over-the-counter birth control is so fantastically cheap and abundant in this country that it’s probably in the drinking water by now.
To be sure, the Court has never recognized the religious rights of a for-profit corporation such as Hobby Lobby. There’s a better than zero chance they would decline to recognize them here.
If the Court were to rule that Hobby Lobby’s religious liberties are secondary to saving young women a few dollars a month, it would be a troubling precedent.
It would also be a stark warning to all Americans, whether religious or not: Your God-given rights are always negotiable in the eyes of the government.
Let’s hope, for all our sakes, that Justice Kennedy woke up in a good mood the morning he decided which way to go.