Okay, are we ready for another plunge? By “are we,” I mean, “am I.” Yes, I’m talking to myself, the way I do when I’m on the edge of a pool and I know the water is going to be cold. While my rational self knows it will soon be more comfortable and I’ll enjoy the water, my less-rational self tenses up when I’m poised on the edge, anticipating the cold to the exclusion of all other thoughts.
Maybe you think I’m being overly dramatic, but I feel very strongly about reproductive rights. It’s difficult, and even scary, to step away from my own perspective and inhabit others’ narratives. But I enjoyed it the other day, and I learned from it, and I liked people better because of it. So I’m gonna do it again. And after I work through the perspective of others, I’ll hop back into my own body and tease out what informs my perspective.
4 notes [you can skip these if you’re tired of background!]
1) The other day, I focused on a particular FB status that asked a general question about birth control and “personal responsibility.” I wrote my way through that part of the thread as well as I could.
Several of the responses to the general status offered specific comments on the Hobby Lobby lawsuit. They didn’t mention the similar suit involving Conestoga Wood Specialties; the latter is much smaller and is run by a Mennonite family here in Pennsylvania.
At any rate, while my previous post was somewhat general, I’m going to address religious freedom here, with specific references to the Hobby Lobby arguments. A high school friend provided some helpful insights in response to my previous posts, so I’m going to again paraphrase some views (from the original thread and from my high school friend) in order to see how much I can understand.
2) A colleague/friend mentioned the way my previous blog seemed like a form of Rogerian argument. Yes, it definitely did! I focused on Cheryl Glenn’s inspiration for my rhetorical approach rather than the widely-taught Rogerian argument because a) Glenn’s approach was fresh in my mind and b) the “argument” term that gets paired with the modifier “Rogerian” seems inappropriate.
Do I secretly hope to persuade, to “win the argument”? Sure. I’m only human! But I’m trying to focus on mutual understanding. It doesn’t necessarily resolve the conflict, I know. But I’m hoping it makes it easier to discuss the issues respectfully.
3) Like my other blogging, my writing reflects my personal beliefs and is in no way connected to or representative of the university where I teach.
4) I’m not a lawyer and I don’t have expertise in law. Just to help you set expectations at an appropriate level for what follows. :)
This is me inhabiting the viewpoint that the government is forcing people to violate their religious beliefs in the Hobby Lobby case.
Let me start here. I hate to be told what to do. Seriously! If I’m asked to do something, I’m very likely to do it. If I’m mandated, well, that just rankles. I’m WAY less likely to comply.
That reaction to being bossed around isn’t really what’s going on here, though. What’s going on is more invasive. It’s being bossed around in a way that goes completely against a belief I hold.
I get this. If my children are required to take high-stakes tests in which essays are graded by computers, I will balk. As a matter of fact, in Pennsylvania, the only way to opt out of testing is to do so on religious grounds. I would use my religion to opt my kids out of such tests, as this parent did. The truth is that it’s not religion that grounds my stance but instead research and my commitment to good educational practices.
So maybe that’s not a great example.
And a great example may be tough for me to generate. My religion, which is Unitarian Universalism, doesn’t really mandate what I think or believe about anything. I tend not to use my faith (or lack thereof) as an argument for my political stances.
But my religion does give certain guidelines in the form of seven principles, so I’ll use those as a jumping off point to set up a situation that would lead me to claim freedom of religion.
Okay, the seventh principle is “Respect for the interdependent web of all existence of which we are a part.” If I owned a business and the government said we needed to put our trash in rivers, and I was certain that putting our trash in rivers was a bad thing to do and would have awful repercussions, I would definitely resist the mandate. If need be, I’d take it to court.
Interestingly, once in court, my argument would not simply rest on a religious belief. It would also rely on research showing that dumping trash into the river has terrible effects.
In this way, I can understand the Hobby Lobby suit. They are not opposed to all birth control but instead are opposed to certain forms:
- Plan B (aka “the morning after pill”)
- Ella (which is another emergency contraceptive pill)
- the IUD (which can be used as an emergency contraceptive or a long-term contraceptive, and which comes in different forms that work different ways)
The contention is that these forms of birth control abort fertilized eggs. The Greens (the family who owns Hobby Lobby) believe abortion is a form of murder.
Although I don’t think abortion is a form of murder, I’m pretty good at understanding that people who do hold this belief see themselves as heroes of sorts, standing up against bullies who think it’s okay to kill babies so their lives are more convenient.
I’m against river pollution, even if it’s sorta disguised by a sneaky mandate to get trash to end up in the river. And Hobby Lobby is against abortion, even if it’s sorta disguised by a sneaky mandate to provide insurance coverage for contraceptives that not only prevent eggs from being fertilized but also affect the linings of the uterus so that eggs cannot be implanted (see more on this below).
In both cases (the real and the fictional), the government does offer a choice: pay the fine if you don’t follow the mandate.
If I didn’t win in court, I guess I’d try to minimize the negative effects. Maybe I’d try to avoid producing a large amount of trash. Maybe I’d refuse to dump my trash in the river and would pay the fine. But, either way, I’d definitely be pissed about the messed-up morals being displayed by the government, and I’d be doubly pissed that I’d be implicated in these wrongful rulings.
Yeah, the whole river-dumping thing would make me upset. I’d stand up to the government, and I’d hope other people would rally to support me and my adherence to the UU church’s seventh principle.
BACK INTO MY OWN BODY…
I don’t know if I went far enough to inhabit the other side. Honestly, the whole time I was writing, I was thinking a whole number of things that were undercutting the argument. And that kind of thinking is really not what my goal was here.
I’m way more frustrated with myself than I was the other day.
Why am I struggling to really understand? What is holding me back?
It’s a whole slew of things. I’m 45 years old. I’m carrying some baggage. And a lot of my baggage is not the typical baggage with all its negative connotations but instead is stuff I want to be carrying. It’s stuff I don’t want to cast off easily.
the happiest-looking baggage ever!
1. The way I see most religious arguments.
My friend Lori told me that regularly during church services, she would tell her toddler daughter Jordan,
“Shhh. God wants you to be quiet.”
Then, one day, Lori and Jordan were at the park and Lori told Jordan it was time to go home. Jordan said,
“No, Mom. God wants me to keep playing on the swings.”
1a. The connection to the Hobby Lobby religious argument: Justification for anything.
Clearly, anyone at anytime can say God wants them to do something in order to justify a decision. I’m sure I make some decisions because I feel called to, and I may be hard-pressed to present my reasoning in a rational form. That’s all well and good when I’m operating within the realm of the law in ways that don’t affect others.
But I’m not okay with a “God wants me to” justification when it affects people other than the individual making the decision.
Here, the government is trying to make healthcare accessible. Hobby Lobby is saying some of that healthcare is against their religious beliefs. Such a claim could be made about any workers’ rights, at any time. Before we go around claiming the right of corporations to not comply with government regulations based on religious beliefs, we need to stop and think about how such a precedent can be used by corporations for their profit. When people claim that this case is not about workers’ rights, they are blinded by this case’s focus on this particular right—women’s rights to contraception. I don’t think I’m speaking out of turn when I point out that women’s reproductive rights are regularly contested in the U.S.
But the Hobby Lobby case could open the door to any number of claims. That’s scary. “God wants me to” is not okay reasoning when it comes to corporations’ decisions about workers.
1b. More connections to the Hobby Lobby argument: Absence of a reason-based argument.
If there were good reasons beyond “God wants me to” then I would be more willing to listen. Lori might’ve told Jordan, “People are trying to hear, so it would be helpful for you to be quieter.” That’s a justification for asking Jordan to be quiet during church.
But the justification offered by Hobby Lobby seems bogus. It goes something like this: “My religion says these forms of contraception are abortion, and I’m against abortion, so I get to limit insurance accordingly.” I have issues with this stance for several reasons.
- Just saw this info about Christians standing against Hobby Lobby’s lawsuit. So it’s not a simple “we all believe this” kind of thing…it’s more of a Green-family-choosing-what-they-want-to-believe kind of thing….
- Hobby Lobby argues that the 3 contraceptives in question cause abortions because they keep the egg from implanting in the uterine wall. That’s not accurate.The truth is, the emergency contraceptives Plan B and ella prevent pregnancy by preventing the egg from being fertilized, either by blocking sperm or by tricking the body into thinking it’s already pregnant so ovulation does not occur. Neither prevents uterine implantation.
The 2 forms of IUDs do affect the uterine lining, but the primary way they prevent pregnancy is by immobilizing sperm and/or thickening cervical mucous so the sperm is blocked. IUD are often used as long-term rather than emergency contraceptives.
Thus, the argument that the birth control methods are forms of abortion because Hobby Lobby views a fertilized egg as the start of life…well, it’s an argument that ignores the fact that these forms of birth control prevent eggs from being fertilized.The links to each of the 3 forms of birth control above provide information about how they work. More updates on research regarding Plan B and Ella are in the “not accurate” hyperlink.
None of these contraceptives is considered an “abortion pill.” And there’s good reason behind that distinction.
- Hobby Lobby was actually using an insurance plan that covered all of the contraceptives under question until the Affordable Health Care Act said that it was required.The Green family said they didn’t realize they were covering these contraceptives, and once they did, they changed the plan.
If the insurance plan is that far removed from the Green family—far enough that they were ignorant of what was covered for most of the history of the company—then the suit seems more intent on chipping away at Roe v. Wade (with wrong facts and with the belief that women cannot make their own ethical decisions) than on protecting religious freedom.
Of course, if this contention is correct, then it’s truly ironic. To the degree that women are denied contraceptives, abortions are more likely to happen.I can’t help but wonder if the Green family just doesn’t like to be bossed around by the government about insurance decisions in the same way that I wouldn’t want to be bossed around by them about my healthcare decisions if I was their employee.
I cannot know what is going on in the minds of the Green family. And I am critical of their stance for other reasons (detailed below), so it might be that they are more genuine than I give them credit for. Still, I need something way beyond, “God wants me to” as a reason for limiting other people’s healthcare coverage. Especially when the coverage has not been limited before.
- And, here’s further evidence that the Green family is disingenuous: Hobby Lobby’s retirement plan includes investments that support the manufacturing of the very contraceptives that offend their religious beliefs. Huh. Way to practice that religious belief that means so much to you.
1c. Last connections: not a matter of Constitutional rights
The first amendment has two clauses regarding religion, as explained here, and they basically say that the government won’t make people practice a religion and no religion will be favored over another (the establishment clause), and the government won’t stop people from practicing a religion or interfere with their worship (the free expression clause).
Neither Lori nor Jordan nor Hobby Lobby gets the right to use their religious beliefs to ignore legislation. That’s not what’s protected.
There’s a whole other religious thing that was passed: the Religious Freedom Restoration Act. That’s the thing that’s causing trouble in this situation, not the First Amendment. Interestingly, the Supreme Court ruled the RFRA unconstitutional when applied to state laws; that ruling alone should give people pause when applying the RFRA to the Hobby Lobby suit.
Here’s the low-down on the free expression clause (the establishment clause from the first amendment is not relevant to this case) from “firstamendmentcenter.org”:
The free-exercise clause of the First Amendment states that the government “shall make no law … prohibiting the free exercise of religion.” Although the text sounds absolute, “no law” does not always mean “no law.” The Supreme Court has had to place some limits on the freedom to practice religion. To take an easy example cited by the Court in one of its landmark “free-exercise” cases (Reynolds v. U.S., 1878), the First Amendment would not protect the practice of human sacrifice even if some religion required it. In other words, while the freedom to believe is absolute, the freedom to act on those beliefs is not.
But where may government draw the line on the practice of religion? The courts have struggled with the answer to that question for much of our history. Over time, the Supreme Court developed a test to help judges determine the limits of free exercise. First fully articulated in the 1963 case of Sherbert v. Verner, this test is sometimes referred to as the Sherbert or “compelling interest” test. The test has four parts: two that apply to any person who claims that his freedom of religion has been violated, and two that apply to the government agency accused of violating those rights.
For the individual, the court must determine
- whether the person has a claim involving a sincere religious belief, and
- whether the government action places a substantial burden on the person’s ability to act on that belief.
If these two elements are established, then the government must prove
- that it is acting in furtherance of a “compelling state interest,” and
- that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.
The Supreme Court, however, curtailed the application of the Sherbert test in the 1990 case of Employment Division v. Smith. In that case, the Court held that a burden on free exercise no longer had to be justified by a compelling state interest if the burden was an unintended result of laws that are generally applicable.
After Smith, only laws (or government actions) that (1) were intended to prohibit the free exercise of religion, or (2) violated other constitutional rights, such as freedom of speech, were subject to the compelling-interest test. For example, a state could not pass a law stating that Native Americans are prohibited from using peyote, but it could accomplish the same result by prohibiting the use of peyote by everyone.
The RFRA changed that last part when it comes to federal laws.
At any rate: The Green family has not proven their sincerity because they have offered the contraceptives under question and have contributed to investment funds that go to the manufacturers of the contraceptives under question. The government, on the other hand, has “a compelling state interest” and is not restricting religious practice.
The criteria themselves are overly generous. Are they met? I’d say yes. But I do admit that I’m totally biased in that direction.
2. The recent history.
Roe v. Wade was settled a long time ago (1973), but politicians have been chipping away at a woman’s right to abortion in alarming ways in the last few years, armed with wrong information and a sense of righteousness that disrespects women’s ability to make their own decisions.
The 3 contraceptives in question are not “abortion pills,” but even if they were, I’d say: Not your body, Green family. And definitely not your choice.
3. A longer view of history.
Religion is regularly used as a convenient tool to justify unfair systems—the entire feudal system, for one, and the idea of grace and manifest destiny in the U.S. for another. (See The Protestant Work Ethic and the Spirit of Capitalism if you’re unfamiliar.)
What’s even more familiar to me is the way the issues that are raised most regularly when it comes to healthcare are the issues that disproportionately affect women.
Women need control of their own reproductive systems. When Hobby Lobby or any other corporate entity or individual uses religion or science or family or law to wrest that control from women, I read my Kollantai and Rubin and Steinem and Valenti. Those are my religious texts. And I’m feel in’ mighty infringed on, lemme tell ya.
4. My own history.
If you’ve made it this far, congratulations! I’ll reward you with a story.
I was diagnosed with breast cancer in 2003, just as I was turning 34. (Don’t worry: I survived! It’s a happy story.) Insurance covered my screenings that led to diagnosis, the surgery and radiation used to treat the cancer, the tamoxifen I took for five years to prevent recurrence, and my husband’s vasectomy because my doctor told me the surge of hormones that would occur with another pregnancy could lead to a cancer recurrence.
(Does anyone want to argue with any of that coverage? Is it an issue? Is it against anyone’s religious beliefs? Are you even okay with the vasectomy? Why, exactly? Why should all of this healthcare be covered even when someone somewhere could decide it’s against their religious beliefs? If you still have some argument left for Hobby Lobby, read on.)
At this point, 11 years later, I have not had a recurrence, and it looks like recurrence is not associated with pregnancy as my doctor believed all those years ago.
However, my own situation makes it clear to me that contraceptives need to be available. What if my doctor was right, and pregnancy could greatly increase my chance of recurrence? In that situation, if I was raped or if I had sex with someone other than my husband, emergency contraception would be appropriate healthcare. It would prevent not only pregnancy but also prevent cancer.
And, whether I was a Hobby Lobby employee or not, I should have my health care covered under the Affordable Care Act. I should not need to have emergency contraception cut from the list anymore than radiation or surgery or tamoxifen should be cut from the list.
You can’t argue with me: I had cancer! I’m a victim! (This is a joke. Sorry if it’s not funny. It’s hard to make good cancer jokes. But it’s also a transition to #5, so you can enjoy it on that level if the humor doesn’t work for you.)
5. And, finally. The “who is actually being oppressed” game.
There’s this weird thing that happens in arguments where people try to portray themselves as the victim who is being oppressed. The government is violating the religious rights of the Green family. The govt=bully, the Green family=victim.
When it’s pointed out that the Green family is enforcing their religious beliefs on employees in their attempt to limit insurance coverage so certain kinds of healthcare are not covered, the equation becomes Green family=bully, employees=victim.
People who argue on behalf of the Green family say that religious freedom is a guaranteed right; contraceptives are not a guaranteed right. I already pointed out that the right to ignore legislation due to religious beliefs is not part of the first amendment. (It’s #1c, which mostly consists of a helpful link, in case you need a refresher.)
Furthermore, these people argue, women can go ahead and pay for contraceptives themselves. And I addressed this point by wondering why this form of preventative healthcare should be denied coverage when other forms are not, and any employer at any time could claim a religious objection to any form of healthcare? (This stuff was pointed out mostly in #4, with parts implied in #2 and #3. But I’m sure you’re reading carefully and have it all under your belt.)
We can talk all day about what is a “right” and what is not a “right.” But let’s pause for a moment and simply think about what is right. Preventative health care is good for all of us. The government is trying to provide preventative health care to citizens. The government is actually trying to do something right. Yes. The government! I know. It is shocking. But preventative healthcare is a good thing.
The Green family is saying “No” to part of that preventative health care.
In this case, it’s preventative health care that the Green family is associating with abortion, which is a point of controversy for a lot of people. But think about how you would stand if the preventative health care being contested was for any other health need. Are you still thinking that the government is bullying the Green family and the employees should just go out and pay for it themselves? If you are the employee and your children are denied coverage for vaccines, if you are the employee and you or your spouse is denied coverage for an epidural during childbirth, if you are the employee and you are denied coverage for tamoxifen to prevent a cancer recurrence…are you okay with this?
Me? No, I’m not okay with this. I say “yes” to workers’ rights to preventative healthcare, even if the big bad oppressive government is the one trying to establish such rights. And I say “no” to using religion to deny preventative healthcare, even on behalf of the oppressed and victimized Green family who struggles to express their religious beliefs in a culture where Christianity is often invisible and, when it is visible, is widely disrespected and thus difficult to practice.
Yeah, that last part was irony. If this lawsuit is Hobby Lobby’s Plan A, I’m hoping they turn to Plan B sooner rather than later.