This week, the Supreme Court will hear arguments on the ability of for-profit corporations to refuse to comply with the Affordable Care Act’s contraception mandate on religious grounds. The plaintiffs in these cases, Hobby Lobby Inc. and Conestoga Wood Specialties Inc., are companies owned and operated by observant Christian families who take moral issue with certain kinds of contraception. The owners argue that being compelled to subsidize such contraception, through the provision of ACA-compliant employee health plans, impinges on their religious liberty. It’s a tried-and-true formula of conservative politics: take a problem that’s ultimately about poverty and class structure — here, the fact that contraception, which many Americans regard as a basic need, is incredibly expensive — and transform it into a debate about devotion.
Much of the liberal commentary on the Hobby Lobby and Conestoga cases has focused on the “corporate” issue, casting the companies’ efforts to obtain religious exemptions as a cunning way to inflate the rights of big companies. Conservatives, by contrast, tend to see the contraception mandate as an assault on religion. On this view, the controversy becomes an extension of the culture wars — as the opening line of Hobby Lobby’s brief puts it, “this [case] is one of the most straightforward violations of [religious freedom] this Court is likely to see.” What both of these pictures leave out, however, is the economic dimensions of these cases. The contraception mandate is, in effect, a form of redistribution. Like other forms of progressive cost-sharing, the mandate compels the affluent — in this case, owners of businesses that employ more than 50 people — to help shoulder the cost of a good that would otherwise be out of reach, or very nearly so, for the working poor.
Not surprisingly, conservatives have been keen to deflect attention from the economic dimensions of the cases. The effort combines multiple strategies. One strategy is to emphasize how burdensome the ACA is in general. Since the ACA was enacted, conservative media outlets have effused about the peril it supposedly holds in store for business owners. In this narrative, the contraception mandate is one straw — a morally outrageous one — on a much larger stack.
Another strategy has been to spotlight the piousness of business owners. The CEO and main shareholder of Hobby Lobby is David Green: patriarch of an all-American family of devout Christians, who developed a successful retail business from the ground up, and who, out of a sense of religious obligation, pays his workers better-than-market wages and gives them ample time off for family commitments. Of course, not every party entitled to accommodation would be as sympathetic as the Green family. But at some level, that’s always true of legal rules. In the Greens’ case, their sincerity of faith is beyond dispute. They seem like good people, people who genuinely want nothing more than to do right by others, and by God’s word.
A third strategy approaches the issue from the other direction, downplaying the projected impact on people who stand to lose out from religious accommodation: the employees whose contraception would otherwise be covered. A popular argument among conservatives — common in the news media, and now even making its way into briefing before the court — is that employees would suffer only minimal harm from religious exemptions because they remain free to purchase contraception on their own. Take, for example, Michelle Malkin’s view of the litigation, from the pages of National Review:
Hobby Lobby’s company health-insurance plan covers 16 of the 20 FDA-approved contraceptives required under the Obamacare mandate — at no additional costs to employees … No one is forced to work at Hobby Lobby. If workers want birth control, they can pay for it themselves.
Malkin’s formulation may veer toward the polemical, but it’s far from anomalous. For example, John Kennedy — CEO of Autocam Corp., one of the putatively religious companies whose request for an accommodation was consolidated with Hobby Lobby’s — echoed the same point during an interview with The Christian Post, when asked why he’d decided to bring the legal challenge:
[Employees can purchase] anything that the IRS defines as a “medical expense” — including a surgical abortion — with pre-tax dollars through their HSAs (health savings accounts). I’m simply trying to ensure that my family does not spend our money in a way that … violates our deeply held beliefs.
The plaintiffs take for granted that employees have extra money on hand to pay for birth control — which, in many instances, is manifestly not the case.
What should we make of this “buy your own contraception” argument? In one sense, it has no force at all. That employees will have to buy birth control without the benefit of insurance is exactly what is troubling: the “freedom” to buy contraception is just a euphemistic way of saying that it isn’t covered in one’s health plan. Trying to pass this off as a solution to the harm, when it actually just recapitulates the harm, simply breeds confusion.
In another sense, however, the specific quality of confusion sheds light on broader patterns of conservative ideology. By focusing on the fact that employees may spend their own money, proponents of the requested accommodation seem to disbelieve — or worse, to disdain — the financial hardship implied by this “solution.” They take for granted that employees have extra money on hand to pay for birth control — which, in many instances, is manifestly not the case. Perhaps this isn’t terribly surprising; disbelief and disdain are stock conservative responses, after all, to financial hardship. But it still bears note, given that the enormous cost of health care is precisely what the ACA was enacted to counter. What we have in the Hobby Lobby and Conestoga cases, then, is a policy designed to tackle a concrete and far-reaching economic problem — spiraling health care costs — transmuted into an issue of piety.
In the Christian Post interview, Autocam’s Kennedy suggested that for the court to deny the requested accommodations would “essentially split the human person in two — one who prays in their church … and the other who goes to work, checking their faith at the door.” To Kennedy — and no doubt many other religious business owners — this result must be nothing short of devastating. “Being a good Christian,” Kennedy said, “to me means living my faith in all areas of my life, not just at a church.” The sentiment has been replicated elsewhere. In an essay in First Things, for example, John Daniel Davidson argued that the mandate evinces “contempt” for the “moral convictions of [business] owners,” since the government’s position assumes — mistakenly — that “for-profit businesses are inherently secular.”
If the idea here is to foment compassion for religious business owners, the effort fails — not because the business owners in question aren’t devout people, but because the devout people in question own businesses. In other words, the point is not to deny that for some business owners, it will compromise religious belief to subsidize birth control. The point is that it’s distastefully easy for business owners to tell poorer people how to spend money they don’t even have. Moreover, the mere fact that a business owner is religious doesn’t make the business itself religious. The more employees a business has — and certainly once 50 people are employed — the less likely it is that the workforce will be homogenously Christian.
In a recent post on the Heritage Foundation blog, Evan Bernick described the contraception mandate as “not just an assault on religious liberty,” but more incisively, “an assault on an idea as old as the nation: that the government can’t lightly force us to give up our most deeply held beliefs as the price of earning a living.” This idea is old — and cherished — but it’s also wildly inapplicable to the circumstances at hand. “Earning a living” doesn’t come close to describing the everyday reality of the business owners challenging the mandate.
The ACA was designed specifically to make health care, a basic good, affordable for ordinary Americans — people who don’t own their own businesses, who work for low wages and, in many instances, are barely getting by. It’s that wide swath of the population, not the diffuse group of elites that happen to be devoutly religious and in possession of large business interests, who should ultimately garner sympathy from lawmakers, judges and the general public. Business owners like the Green family are making — often have already made — many lifetimes’ worth of “a living.” I’m glad for them; their success, and corresponding comfort, seems deserved. But that’s just the point. They are not the ones that we, as a nation, ought to be worrying about.
It’s not that these cases aren’t about religious devotion. On some level, they obviously are. But they aren’t solely about devotion. The mere existence of the “buy your own contraception” argument — the fact that it isn’t dismissed out of hand, by everyone, immediately — underscores how alienated we’ve become from the cases’ economic roots. And it shows how effortlessly the conversation was able to shift from the concrete needs of the poor to the spiritual propensities of the rich.