I haven’t written here for a long time. The decision of the
Supreme Court of the United States (SCOTUS) released on June 30, 2014 regarding
the law suit which exempts closely held, for profit corporations from providing
certain forms of birth control has inspired me though to consider some of these
more complicated issues. I appreciate the tones of the discussions that I have
had with people on Facebook, and hope that this civility and respect can
continue. There are 3 things I want to consider in the following paragraphs.
The first is the nature and function of medications that have been called
contraceptive. The second is the philosophical idea of cooperation with evil.
The last is the basis of the Supreme Court decision based on the opinion
written by Chief Justice Alito and the addendum to his opinion written by
Justice Kennedy.
Medication Is Not
Evil, But It’s Not Good Either
Medication is medication. Medication, in and of itself, has
no moral value. It is morally neutral. In that sense, medication is like a
hammer. Medications and hammers derive their moral value based on the function
to which they are used. A hammer can build a house, in which case the function
of the hammer has positive moral value. A hammer wielded by a maniac can kill
an innocent human being, in which case the function of the hammer has a
negative moral value. Medications are the same. Medications can be used to make
someone well, in which function they a valued morally good. Medications can be
used to kill someone, in which function they are valued morally evil. This is
true of medications that are so called contraceptives, too. Contraceptives have
no moral value in and of themselves. They are neutral. To paraphrase Freud, “Sometimes a pill is just a pill.”
Then what’s the big deal? The medications that are often
prescribed by doctors as birth control pills have no moral value in and of
themselves, but attain moral value based on the function to which they are
used. “The pill” can be used to treat Endometriosis and Polycystic Ovarian
Syndrome (PCOV), which are painful and legitimate women’s health concerns (http://www.webmd.com/sex/birth-control/features/other-reasons-to-take-the-pill).
But to say in a blanket statement, “’The pill’ is evil,” is too much of an
overstatement. First of all, there are many different forms of “the pill.” “The
pill” is actually several different forms of medication that are prescribed at
various levels of potency. This is important to remember with the word “contraceptive,”
too. Just like there are many forms of “the pill,” there are many forms of “contraceptives.”
The condom is a contraceptive. “The pill” is a contraceptive. RU-486 is a “contraceptive.”
Plan B, also known as “the morning after pill,” is a “contraceptive.” Even
abortion has been called a “contraceptive.” This is a HUGE part of the problem
when we hear that the SCOTUS has exempted closely held, for profit companies
from providing “contraception” for its employees. We lump all of these “contraceptives”
together in that statement without bothering to find out what the SCOTUS
actually did in this decision.
The SCOTUS did not exempt the plaintiffs, Hobby Lobby,
Conestoga, and Mardel corporations, from providing “the pill” in its ruling. As
a matter of fact, the plaintiffs in this lawsuit never sought to have “the pill”
exempted. In the HHS mandate for the provision of “contraceptives,” there are
20 listed that a company must provide. The plaintiffs in this lawsuit sought to
be exempted from 4 of those 20, Plan B (the morning after pill), Ella (which is
a medication that works very similarly to Plan B), and 2 intrauterine devices
(IUDs). The reason is because unlike the 16 other forms of contraception listed
in the HHS rule, the plaintiffs believe that Plan B, Ella, and the IUDs do not
work solely to prevent conception (thus being truly functionally “contraceptive”),
but also work by preventing implantation of a fertilized egg into the uterine
wall to grow into an embryo. The plaintiffs believe that a human life begins at
the very second the sperm pierces the outer egg shell and the egg is fertilized,
in other words, at the moment of conception. The plaintiffs believe that these
forms of “contraception” are actually abortifacient, in that they work by causing
an abortion of a conceived human being by stopping the fertilized egg from
implanting into the uterine wall, rather than by preventing the conception in
the first place.
Plan B is an “emergency birth control pill” taken in one
dose that works either by preventing ovulation, preventing the sperm from
reaching the egg, or “prevents implantation of a fertilized egg in the uterus
by altering its lining” (http://www.webmd.com/women/guide/plan-b).
Ella is a non-hormonal “emergency birth control pill” taken in one dose. Ella’s
formal medical name is Ulipristal. Ella works by “preventing or delaying
ovulation” (http://www.webmd.com/sex/birth-control/ulipristal-for-emergency-contraception).
“It also may work by changing the lining of the uterus (womb) to prevent development of a pregnancy” (http://www.nlm.nih.gov/medlineplus/druginfo/meds/a610020.html).
In other words, one of its forms of action is to change the lining of the
uterus so that a fertilized egg cannot implant into the womb, thus being
abortifacient, rather than “contraceptive.” There are 2 types of IUDs. One works
by releasing progesterone, which thickens the cervical mucus in an attempt to
prevent fertilization. Failing that, “the hormone also changes the lining of
the uterus, so implantation of a fertilized egg cannot occur” (http://www.webmd.com/sex/birth-control/iud-intrauterine-device).
The other type releases copper into the uterus creating a toxic environment
within the uterus, thus working as a type of spermicide to destroy sperm before
it is able to reach the egg to fertilize it. Failing that, the environment of
the womb is toxic due to the copper, so normal implantation and development of
an embryo in the uterine wall is interrupted. (http://www.webmd.com/sex/birth-control/iud-intrauterine-device;
http://www.womenshealth.gov/publications/our-publications/fact-sheet/birth-control-methods.html#impdev).
These four forms of “contraceptives” also have as a secondary “back up” action
of interfering with the implantation of a fertilized egg, thus making them
abortifacient. These four forms of birth control are not prescribed for any
other reason than to prevent pregnancy. There is no benefit for a woman’s
health that comes from these four forms of birth control. They are not used to
treat in any medical condition. They are solely to prevent pregnancy.
So we have these four forms of “contraceptives,” which also
may work through abortifacient means, and that are prescribed for no physical
health reason other than to prevent pregnancy. The HHS rule still requires Hobby
Lobby, Conestoga and Mardel to provide “the pill” to women both as
contraceptive and as treatment for physical health problems. Again, the
plaintiffs never sought exemption from providing “the pill.”
It is against the moral beliefs of the plaintiffs to cooperate
with abortion in any way. These 2 medications and 2 IUDs do work occasionally
by functioning as abortifacients. The plaintiffs believe that in paying for
these medications through their insurance providers, they would be cooperating
with abortions indirectly. This leads us to our second topic.
Cooperation With
Evil, A Philosophical Conundrum
Every moral system that has ever been developed agrees that
it is never right to do something that is morally evil. People of sincere
thought and good faith have disagreed on what constitutes a morally evil act, but
everyone would agree that it’s not ok to do one. This is such a huge topic, and
there are many ways to discuss cooperation with evil. For this discussion, I am
going to focus on 3 forms of cooperation with evil, immediate (also known as
direct), mediate (also known as indirect), and remote.
An immediate cooperation with moral evil would be, for
example, driving a get –away car for a bank robbery. Now there are elements
that could reduce one’s culpability for this direct cooperation with a moral
evil. For example, I may not know that the person I’m picking up just robbed a
bank. Or perhaps I’m waiting in my car at a stop light and the bank robber runs
out, jumps in my car, puts a gun in my face and says, “Drive!” In one instance,
my lack of knowledge diminishes my culpability. In the other, one could argue
that my free will was impeded, and that lack of freedom would diminish my
culpability. For the purpose of this argument, we are going to assume that the
person acting has both full knowledge and full freedom of will to cooperate or
to refuse to cooperate.
The second form of cooperation, mediate, occurs when one is complicit
with the immoral act, but does not directly assist in the act. For example, if
I were to sell a gun to a person who I knew was going to use the gun for a
robbery. I do not participate in the robbery at any level, but because I know
the robbery is going to occur and that the person plans on using the gun in the
robbery, I am cooperating with the act of the robbery. Another example, which
becomes pertinent to the discussion here, is if my friend wants to sleep with a
prostitute as a last “fling” the night before his wedding, so I pay for the prostitute.
I do not sleep with the prostitute myself, nor am I even present when my friend
has sex with the prostitute. I have paid for the prostitute, and therefore am
indirectly cooperating with the immoral sexual act.
The third form of cooperation with evil is remote. If I
deposit my money into a bank, and then the bank provides a small business loan
to a person who intends to start a pornography shop, I am remotely cooperating
with that evil. The greatest real life example of this is in paying taxes. The
government may be using my tax dollars to fund activities that I find morally
reprehensible, funding for abortion facilities or funding for what I consider
to be unjust wars. I am remotely cooperating with this evil by paying my taxes.
As you can see, my level of culpability diminishes with each
step away from the evil act. I am directly culpable when I am immediately
cooperating. I am culpable, but to a lesser degree, when I am indirectly
complicit in the act. I bare little if any culpability at all when I am
remotely connected to the act.
This is the conundrum that was placed before the owners of
Hobby Lobby, Conestoga, and Mardel. They believe that abortion is an evil act.
I am not willing in this discussion to debate the morality of abortion. That is
a conversation for a different time. They believe it is evil. The HHS mandate
as it stands requires them to pay for the four types of birth control which do
occasionally work as abortifacients. This is a similar situation to my friend
who wishes to sleep with a prostitute. By paying for the abortifacient
medications, they are indirectly cooperating with the use of those medications,
which is the second level of cooperation, and therefore makes them culpable in
part for any abortion of a pregnancy that may occur if those medications or
devices were used by one of their employees. They are being asked to violate
their deeply held religious conviction.
Some of have brought up the fact that Hobby Lobby provides a
401k for its employees, and that the money of the 401k is invested in the very
companies that produce the abortifacient medications and devices to which they
so strongly objected. While I agree that from a PR perspective, this doesn’t
look good, from a moral perspective, this falls into the third category of
remote cooperation. I do not have all of the details regarding Hobby Lobby’s
401k, but I imagine it is not that much different than the 401ks that I have
had offered by my employers throughout my work history. If this is the case,
then Hobby Lobby’s investments into these companies would be a the same level
as our third example of the person who puts his money into a savings account,
while the bank invests in a pornography store. Hobby Lobby puts its money into
an investment firm, who then invests the money into ventures and companies over
which Hobby Lobby has no control. This level of cooperation carries with it no
culpability on the part of Hobby Lobby for cooperation. Hobby Lobby invests its
money with Edward Jones (for example), who then invests into a whole bunch of
different companies, one of which is a pharmaceutical company, who among all of
its different pharmaceutical products manufactures a drug that is
abortifacient. This is very different than paying for an abortifacient drug for
someone to use. I agree that it may be prudent for the sake of appearances that
Hobby Lobby should look into an investment firm that avoids moral hot topics. Their
level of cooperation, however, is so far removed in their 401k investments that
they do not share culpability for the manufacture of these drugs.
So the four forms of birth control do work through
abortifacient means, and the plaintiffs in the case believe that paying for
them through insurance is an indirect level of cooperation with abortion that
would compromise their moral beliefs. Can the plaintiffs be forced to
compromise their moral beliefs by the government?
The Supreme Court
Decision
One of the primary arguments that has been made is that a
corporation cannot have a set of moral beliefs or the right to religious
liberty, because it is a corporation and not a person. People have even stated
that the SCOTUS has now extended to corporations a right that we do not have as
individuals. This simply is not the case.
The first part of Chief Justice Alito’s majority opinion
points out that according to law, corporations are considered persons under the
law. Justice Alito points to an earlier decision by a court of appeals that
ruled that corporations cannot hold religious beliefs, to emphasize that indeed
they can:
In holding that Conestoga, as a
“secular, for-profit corporation,” lacks RFRA protection, the Third Circuit
wrote as follows:
“General business corporations do not, separate and apart from the actions or
belief systems of their individual owners or employees, exercise religion.
They do not pray, worship, observe sacraments or take other religiously-motivated
actions separate and apart from the intention and direction of their individual
actors.” 724 F. 3d, at 385 (emphasis added).
All of this is true—but quite beside
the point. Corporations, “separate and apart from” the human beings who own,
run, and are employed by them, cannot do anything at all. (http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf;
Opinion of the Court, pgs. 18-19).
In other words, while corporations may not have the right to
religious freedom, because they do not exercise a religion, the individuals who
own those companies do have the right to religious liberty and are allowed to practice
their right of religious freedom, i.e. not to be compelled to do something
which violates their conscience, within their business practices. This is part
of what this “closely held, for profit corporation” definition means. In some
businesses, you cannot separate the owners of the business from the business that
they run. The families that own Hobby Lobby, Conestoga, and Mardel hold the
businesses very closely. Indeed the founder of Hobby Lobby is the CEO, and his
3 children serve as Vice-CEO, President and Vice-President of the company. It
is a family owned and ran business. They operate their business generally
within their religiously beliefs, so they are not making an exception for the
abortifacients in dispute. One cannot separate Hobby Lobby from the family who
runs it, and therefore they are allowed to run their business according to the
individual religious beliefs. The SCOTUS did not as some claim extend a right
to a corporation that is not held by individuals, but rather upheld the rights
of individuals to run their businesses according to their religious beliefs.
Can owners of businesses be compelled by the government to
do something that violates their religious beliefs? Believe it or not, this is
not the first time that the SCOTUS has had to deal with this question. The
question of whether the government can limit the exercise of religion has come
up before in different circumstances. In the past, the SCOTUS has heard cases
regarding the illegalization of hallucinogens and the effect this has on
religious practice. The SCOTUS has heard cases in which the states interest in
limiting marriage to monogamous relationships seems to violate religious sects’
beliefs regarding polygamous marriages. The court has also heard cases in which
laws requiring businesses to be closed on Sundays were questioned by religious
people whose Sabbath day of rest was celebrated on Saturday. There is a history of the SCOTUS examining cases
in which religious liberty and government interests seem to have come into
conflict. Throughout this history, a test was developed. This test was later
codified into law in the Religious Freedom and Restoration Act (to which Chief
Justice Alito refers as RFRA in the quote above), which was passed and signed
into law in 1993. The test consists of 2 questions: 1. Does the government
action which limits religious freedom further a compelling government interest?
And 2. Is the government action the least restrictive way to secure the
government’s compelling interest?
When looked at objectively, I find it almost laughable that
one could argue that the imposition placed on the plaintiffs serves a
compelling government interest. The argument that is made is that limiting a
woman’s access to contraception would be a public health risk. This is simply
not the case. First of all, the four forms of abortifacient birth control under
scrutiny in this case are never prescribed for women’s health reasons. They are
only prescribed to prevent pregnancy. They serve no health benefit at all.
Secondly, the medications that are normally prescribed to address women’s
health issues like Endometriosis and PCOV are not exempted, and the plaintiffs
never asked to be exempted from them. This, however, is not where the test
failed according to the SCOTUS.
The government action, forcing the plaintiffs to cover abortifacients against their religious beliefs, failed the test on the second question. Justice Kennedy in
an addendum to Chief Justice Alito’s opinion states that the HHS, which created
the mandate, has already in place a system by which women can access these
abortifacient forms of birth control without their employer paying for it. The
HHS provided an exemption in partnership with the insurance companies for
religious, non-profit organizations. These groups already do not have to
provide contraception to their employees as part of their benefits package. Female
employees of these non-profit, religious organizations are provided any form of
birth control that they request at no personal cost to them through this
partnership with HHS and the insurance companies. In other words, the women
still have access to these forms of birth control without having to pay for
them, and the companies don’t have to pay for them either.
Justice Kennedy stated that rather than force for-profit
corporations into providing something that violates the religious beliefs of
the owners, the same process that allows female employees of religious,
non-profit organizations to access any form of birth control at no personal
cost could be implemented for the for-profit companies. There is another means by which women can
access these forms of birth control without personal cost and without forcing
the owners of companies to violate their religious beliefs.
This is why the SCOTUS ruled in favor of the plaintiffs. The
SCOTUS found that the individuals who own these companies have sincerely held religious
beliefs regarding these four forms of birth control, and that there is another
means by which the issue of women’s health concerns can be served without
forcing these individuals to compromise their religious principles.
I hope that this discussion sheds some light on the subject
for you. Please feel free to share this with as many people as you want. My only
requirement is for you to share what I have written in its entirety. No
editing, no taking anything out of context. I am always happy to dialogue respectfully
with anyone about what I’ve written, and answer any questions that people may
have.
I truly hope this essay has been helpful in
furthering the dialogue regarding this decision.
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