Hobby Lobby and lunacy

Sometimes I have frustrating days, but then someone on the Internet decides to explain policy (labor and healthcare policy this time) to me, which makes me feel smart and pretty, like really smart and pretty.

To the beginning! Hobby Lobby is suing over the birth control mandate in the Affordable Care Act (ACA or Obamacare), and I’ve written about it before as a labor issue. The case is Sebelius v. Hobby Lobby Store, Inc. and Conestoga Wood v. Sebelius, and we should all read SCOTUS’s blog before we talk about be because otherwise we’ll look really fucking ignorant…like the dude on Twitter who things having a penis makes him more knowledgeable than everyone (inferred of course). SCOTUS lists the issue as:

“Issue: Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government  ‘shall not substantially burden a person’s exercise of religion’ unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.”

 One issue as I see them is how far Citizen’s United goes, right? It upheld the rights of corporations, unions, and associations to donate money to campaigns. However, it is being largely interpreted as corporations are people because Scalia interpreted it that way. So if corporations are people then corporations have religious freedom. How one goes about deciding who gets to determine which religion seems to be the owners (who are a monolithic group?). Then by extension, how much control over employees can employers exercise?

This second issue is where the Supreme Ladies really came after Hobby Lobby and Conestoga’s lawyer. Sahil Kapur wrote a piece for Talking Points Memo on how the women Supreme Court Justices taking the birth control challengers to task for you know being stupid and inconsistent. It began with Justice Sonia Sotomayor who challenged the lawyer’s, Paul Clement, claim of a religious objection as an exception from the general law, “There are many people who have religious objections to vaccinations.”

Clement responded with each case would have to be individually evaluated under the Religious Freedom Restoration Act (RFRA). However, it was Justice Elena Kagan, who asked the particularly aggressive questions saying, “There are quite a number of medical treatments that religious groups object to.” She was position the discussion that a ruling against the Obama administration could allow businesses to seek exemptions from laws about sec discrimination, family leave, and the minimum wage (the article leaves out tithe). “You’d see religious objectors come out of the woodwork.”

My lady, Justice Ruth Bader Ginsburg also asked skeptical questions about the argument that the mandate infringes on the RFRA. We can’t predict the outcome because SCOTUS is hella conservative. Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito asked difficult questions of the administration while giving easy ones to the challenger’s lawyer. Justice Clarence Thomas didn’t say anything, which is kind of typical for him (someone I’m assuming check his pulse and kept waking him up).

Once again, Justice Anthony Kennedy will likely decide; he asked skeptical questions of U.S. Solicitor General Donald Vernilli, defending the government, and fewer of Clement. Kennedy didn’t seem convinced that the birth control mandate satisfied the scrutiny under RFRA, saying the government’s reasoning could force businesses to pay for abortions. However, he wondered aloud whether the right of employers trumped the right of female employees who are guaranteed concentration coverage under the ACA. Kagan also directly warned ruling against the mandate harms women, “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.

Of course, as Kevin Drum points out for Mother Jones the law probably doesn’t matter much anyway. See this is the first of what appears to be several challenges to ACA. Drum states,

“There’s no precedent for corporations having rights of religious freedom in the first place, and that along seems like enough to toss the case out. But even if they do, the plaintiffs have to show that the contraception requirement imposes a ‘substantial burden’ on them. They argument is that if they don’t comply, they’ll get hit by substantial penalties. But that’s ridiculous. The question is whether complying with the law is a substantial burden.”

 Drum continues to note there little to no evidence that contraception coverage impacts the costs of health insurance for employers. Additionally, in the case of Hobby Lobby, all they have to do is continue the health coverage they have always offered (they offered contraception coverage before ACA).

Of course, none of this will matter.

“Four justices just don’t like the Obamacare mandate and will vote anywhere and at anytime to strike it down. Four justices will vote to uphold the mandate. Anthony Kennedy will provide the swing vote. It’s also possible, I suppose, the John Roberts will vote to uphold the mandate, simple on the principle that having upheld Obamacare once before on a slim technicality…”

 Drum’s probably right. Law doesn’t really matter anymore. We’re being held hostage by conservative religious zealots in Congress, and they’re well on their way to taking over the Supreme Court.