The Provision and Production of Contraceptive Care


James Hanley

James Hanley is a two-bit college professor who'd rather be canoeing.

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187 Responses

  1. Nob Akimoto Nob Akimoto says:

    Okay, I have to admit this clarifies a lot of what you were trying to say. I still think you’re sort of conflating your own views with Brandon’s which seemed fundamentally different, but that’s my personal take on the matter. I honestly don’t think most people would mind a different pragmatic solution, the thing that rankles with regard to Hobby Lobby is a private corporation hypocritically demanding special treatment in how it treats it employees (even while it actively invests money into contraceptive drug developing Pharma companies), not necessarily that the mandate itself is a moral necessity.

    That is to say, people want the provision, but it’s the moral reality of letting HL argue it’s exempt that bothers folks.Report

    • Avatar J@m3z Aitch says:

      it’s the moral reality of letting HL argue it’s exempt that bothers folks (emphasis added)

      Please reassure me that you didn’t mean that quite as it came out.Report

      • Avatar Jim Heffman says:

        I think he’s saying that it bothers people other than him.Report

      • Avatar J@m3z Aitch says:

        I’d be bothered if anyone out there was bothered by the fact that Hobby Lobby was allowed to argue their case in court.Report

      • Avatar Mike Schilling says:

        That they could sue? No. That their case is taken seriously enough to get to the Supreme Court? Kinda.

        I mean, a legal fiction with religious scruples? Please.Report

      • Avatar Jim Heffman says:

        As I’ve said elsewhere (and I’m not the only one) if we want corporations to make ethical decisions, this is what that’s going to look like. People have this idea that “ethical decisions” and “moral behavior” is going to be “no minerals from the Congo”, “fair pay for offshore labor”, “sustainable energy sources”. But then a corporation’s board says “we won’t pay for killing babies, that’s immoral” and suddenly it’s “oh, a corporation CAN’T have MORALS because it isn’t a PERSON”.Report

      • Avatar J@m3z Aitch says:

        That their case is taken seriously enough to get to the Supreme Court? Kinda

        Respectfully, Mike, I think if you understood law better you wouldn’t say this. Even bad arguments get taken up to the Supreme Court at times, so there can be a final definitive statement made about how bad they are, rather than leaving their status unresolved and potentially leading to conflicting decisions in lower courts.

        It’s also the case that what sounds to the layperson like a clearly silly argument as a matter of logic may not be clearly silly as a matter of law. If a law requires an outcome at variance with logic, the Court’s bound by the law, not by the logic.Report

      • Avatar Mike Schilling says:

        Yes, the fact that two different circuit courts gave conflicting opinions means that it has to go to the top if it’s going to be resolved. I get that.Report

      • Nob Akimoto Nob Akimoto says:

        I’m not bothered by the fact that they’re allowed to argue it in court.

        I’m bothered by the mindset that believes they should be simultaneously allowed to get the benefits of providing health insurance, but then not provide it properly. As in the argument that it should be allowed to both have its cake and eat it too that bothers people, not the fact that it’s arguing that in court.Report

    • Avatar Dave says:


      I mean, a legal fiction with religious scruples? Please.

      To think, people defending this are citing Justice Brennan.Report

      • Avatar Mike Schilling says:

        Was Crown Kosher a corporation? (Real question; I can’t tell.) Though the religion of the owners shouldn’t have been the only issue. Having to close on Sunday was a specific hardship because the bulk of their clientele wouldn’t shop on Saturday and might have refused to shop at all at a business that claimed to be Kosher but didn’t observe the Sabbath. Nor should the idea that Sunday wasn’t chosen for religious reasons pass the laugh test.

        Anyway, the Brennan Center for Justice is unimpressed, feeling that

        for-profit business corporations, as legal abstractions, are incapable of exercising the intensely personal emotions associated with religious worship. The right to the free exercise of religion instead belongs to human beings.Report

      • Avatar Dave says:


        I wasn’t thinking as much about the Crown Kosher case as I was Brennan’s dissent in Braunfield v Brown, which I think laid the foundation for his majority opinion in Sherbert v Verner. He would have found in favor of the Jewish merchants in that specific case. His dissents reads as if he didn’t think it would have mattered whether or not the Braunfields(?) would have brought the case as individuals or acting within their corporate capacity.

        When those principles did apply in a majority opinion, it involved an individual and not a corporation.

        Still, while one side claims that a corporation has never successfully won on free exercise grounds, in those cases, i.e. US v Lee, the court never specifically rejected the claims on the basis that it was a corporation raising them (in Lee, the government had a compelling interest).

        I’ll see your Brennan brief and raise you:

        I understand the legal abstraction argument. However, I also understand Scalia’s concurring opinion in Citizens United, which presents an originalist defense against the idea that the First Amendment applied only to individual.

        As a matter of principle, I’d argue that there is a historical basis for it because based on my reading of some of the notes from the various ratification conventions (I’ve spent some time with Virginia’s), the real emphasis was limiting the federal government’s power not just from individuals but from collective associations up to an including the sovereign states.

        Also, based on that brief, I would argue that that a bright line rule like the one put forth by the Brennan Center may trigger constitutional issues in certain situations. I think Hobby Lobby is an extremely rare exception, being a large company with a well-established public identity with religious overtones. I don’t think I can say that for any publicly-traded company.

        I’m not trying to argue for broad recognition of free exercise rights as applied to corporate forms (again, I think this is a rarity in corporate America), but I don’t agree with what I see as a categorical exclusion.

        It’s also important to note that there is no small number of people that believe that not only does the definition of persons under RFRA include corporations but that Congress never intended to limit RFRA to individuals and religious organizations. Taking that one step further, if this represents what people thought of Free Exercise jurisprudence pre Employment Division v Smith, then Free Exercise could apply to a corporation even if it hadn’t happened. Of course, this is very debatable.

        The arguments on your side are very good. I’ve gone back and forth with some damn smart people on this issue that maintain what the brief you cited maintains. Still, I’m not willing to completely foreclose the possibility although I happily accept that situations like this should (hopefully) be rare.Report

      • Avatar Dave says:


        One quick clarification to my point where I cite Scalia’s opinion and the historical basis: I’m aware that nothing specific to religion and business was addressed both in Scalia’s brief and, AFAIK, the historical record. My point was to show that the emphasis was limiting the reach of the federal government against threats to the liberty of both individuals as well as the collectives, those collectives being the sovereign people of each of the states.

        I’m not arguing that the Framers would have agreed with me. I’m not that kind of originalist anyway.Report

      • Avatar Mike Schilling says:

        Hmm, according to the COLPA brief, Crown Kosher was a closely-held corporation.

        It’s also interesting that it affirms

        “The concept of a corporation existing as a separate entity distinct from the persons who own its stock is not recognized in Jewish Law.”

        Though it’s recognized very strongly in American law. (Not sure about the Napoleonic Code.) Good thing they’re not appealing to Sharia law. That would make them terrorists, right?

        An observant Jew may not direct his or her employee – be the employee Jewish or gentile – to labor on the

        Surely they’ve heard of the Shabbes goy (a non-Jew who does tasks that are forbidden to Jews, like keeping a fire going on the Sabbath.) And there isn’t any religious requirement for non-Jews to observe the Sabbath. This must be based on some very fine distinction about the employer-employee relationship, or perhaps that the business is itself Jewish and so cannot run on the Sabbath.Report

  2. Avatar Michael Drew says:

    I don’t recall – may never have known – exactly what argument you are responding to. But I have a hard time imagining that it’s not the case that, whatever may have been written that you were reacting to, the position of most of the people you were debating was and is that the provision of birth control on a cost-equal basis (i.e. sharing the cost for effective family planning equally between individual men and individual women) is morally necessary, but that the contraceptive mandate is merely one morally acceptable means to accomplish that provision – not the only or most morally defensible one, and hence is not specifically morally necessary. (I.e. there are other schemes would be acceptable but this one is okay too.)

    But I guess I must be wrong. So someone explicitly said that this specific set-up – this precise mandate – is specifically morally necessary because it’s the only or at least the most morally defensible means for accomplishing universal provision of contraceptive care to those who want it? You made sure that was actually their argument?Report

    • Avatar Kolohe says:

      ” that the provision of birth control on a cost-equal basis (i.e. sharing the cost for effective family planning equally between individual men and individual women) is morally necessary”

      I don’t think anyone believes this predicate though, at least how I am reading it (which I’ve messed up before).

      Birth control for men is not as expensive as birth control for women (and the former can be obtained without any state-mandated medical advice & permission). Furthermore, the overall cost of women’s health care is more than men on an actuarial basis – because women (as a whole) live longer and actually have the babies. Thus, one of the claimed victories of the PPACA proponents is the insurance rates for men and women

      So, it seems to me that the moral claim that is frequently made (and underlies much of the PPACA debate, the Sandra Fluke testimony – before Limbaugh got involved – and the Hobby Lobby/Little Sisters of the Poor court cases) is that men and women need the health care that’s appropriate for their biology, but at the same retail price to each individual regardless of the total required expenditure. Plus, men and women should get any health care treatment that’s considered medically sound, regardless of what people who are not part of the medical community think (even if they are paying some of the bills)Report

      • Avatar Michael Drew says:

        Um, generally: yes? I think? Women’s health care costs more than men’s; ACA means to even that basic inequality out somewhat. (For that matter it means to even out inequalities in medical expenses across many other dimensions of difference somewhat as well).

        That particular formulation may not have been totally complete or accurate, by all means. It didn’t seem super felicitous to me at the time either. You might have done much better. But it got the basic idea across, I think.Report

  3. Avatar KatherineMW says:

    This strikes me as philosophically splitting hairs.Report

    • Avatar J@m3z Aitch says:

      It matters, because doing it wrong limits our vision of alternative means. I was effectively shouted down, attacked for being anti-woman, accused of imposing male norms, just for arguing that the mandate was not morally necessary. When people are destroying reasoned debate as a consequence of this error, I think splitting the hairs is important.Report

      • Avatar Michael Drew says:

        Are you sure they understood you to be talking about the precise means of *this* mandate for providing contraception, or is it possible they thought you were saying that providing contraception at all, whatever the means, is not morally necessary?Report

      • Avatar Kim says:

        I thank you for taking the time to put together a coherent argument, and am glad that putting it as a post allowed me to consider it more fully.Report

      • Avatar KatherineMW says:

        National health care in the US is very unlikely in the near future. The employer mandate covering contraceptive coverage seems to be a method of providing contraceptive coverage that is far more likely to be implemented than any of the alternatives you suggested. The party which opposes the mandate is also opposed to either national health care or raising the minimum wage; the difference is that the mandate already exists.

        The difference between saying “providing contraceptive coverage isn’t morally obligatory” and “the most feasible mechanism of providing contraceptive coverage isn’t morally obligatory” doesn’t strike me as all that significant.

        That doesn’t mean it’s okay for people to shout you down.Report

      • Avatar Dan Miller says:

        @katherinemw +1Report

      • Avatar J@m3z Aitch says:

        Are you sure they understood you to be talking about the precise means of *this* mandate for providing contraception,

        Do you really think it’s a good strategy to start out by signalling that you didn’t even bother to read the post?Report

      • Avatar Michael Drew says:

        I read the post. I took you to be saying that you were responding to an argument that in fact said that this means (this mandate) for provision of contraceptives was in fact morally necessary – not just that provision in some way is morally necessary, with this as *a* morally *acceptable* means.

        Are you saying that the whole point of the post is to respond to an argument that you know didn’t say that these precise means are morally necessary, but that simply misunderstood your point to be that provision itself isn’t morally necessary (when it was really just that the precise means weren’t morally necessary)?

        I..e, are you saying there never was anyone saying that these precise means are morally necessary, but only a misunderstanding that what you were saying was that provision at all isn’t morally necessary (when in fact you all agree it is), when you were really just saying (I guess spontaneously?) that the precise present means aren’t uniquely morally necessary?

        If so, great, but I don’t see where that’s clear in this post.Report

      • Avatar J@m3z Aitch says:

        Try reading the first substantive paragraph. Slowly. Think carefully about what I’m saying there.

        Basically, I see you doing here what you’ve done so often, and it’s not well-designed to produce polite responses from me. It’s become a predictable, irritating, and pointless routine, like my neighbor’s dog barking frantically each time I walk by. The only real difference is I that I get why the dog never learns how pointless its actions are.Report

      • Avatar Jim Heffman says:

        “Are you sure they understood you to be talking about the precise means of *this* mandate for providing contraception…”

        The argument was not because they didn’t understand James to be suggesting alternate methods of provision; it happened because he refused to condemn Hobby Lobby’s position as prima facie invalid.Report

      • Avatar zic says:

        This is troubling:
        I was effectively shouted down, attacked for being anti-woman, accused of imposing male norms, just for arguing that the mandate was not morally necessary.

        I’ll quote from yesterday:


        As I note below, we don’t allow employers to simply increase pay sufficiently to cover it, or to let a female employee use it for some other purpose if they prefer.
        Why not? Because “access” is not really what is being demanded here, else that would be sufficient.

        If an actual “voucher” of sorts is so crucially important, why not require employers to provide vouchers for food, instead of just letting them give employees money?


        Contraception is not like any other good out there. All of the effective methods require a doctor’s supervision; it’s not something you can just ‘go out and buy’ like you can go purchase a loaf of bread.

        And for the population most at risk of unplanned pregnancies, the decisions really will be “do I buy food” or “do I buy contraception.” The number one reason for second-trimester abortions, remember, is a woman not having the funds to get one earlier.

        Since contraception is only a small part of the mandated preventative services, it’s only a concern because it’s deemed somehow immoral.

        Upthread, you got all over my suggesting that there might be serious reasons to discourage religious exceptions for employers.

        But I’ve yet to see you get all worked up about the fact that your daughters may well be discriminated against when it comes to access to health care, just in the way your wife was definitely discriminated against, and your mother. The marketplace has long been able to get away with that discrimination because women so needed the care that they would, when they could, pay for it out of pocket, even as they were charged more then men for policies that didn’t offer the coverage we’re discussing.

        Insurance is about spreading out risk; and pregnancy is one of the biggest risks women face. It has been since the beginning of time. It is central to their health and well being. Your arguments are totally selfish and male-centric, rooted in the notion that individual liberty and conscience are separated from the realities of women’s reproductive lives; as if our concerns don’t rise the the same level as a religious employer, who’s able to do business behind the corporate veil that offers protection for his personal assets and life from his business failures.

        I’m done with this. I don’t particularly like being the token feminist here. I’m disgusted by the absolute lack of understanding of the male norms women have to face to be treated equally.

        And I came back, after I’d settled down, and most specifically explained why your voucher system seemed problematic to me.

        And I later told you I was offering both pragmatic and moral arguments. But to be 100% clear; you never asked if there were other reasonable ways to get to the moral good; you offered a few as, what seemed to me, preferable methods because they placed no burden on employers. I don’t get health insurance via an employer, and in something like 30 states, I would have had to pay for contraception, maternal care, and a host of other things out-of-pocket. But most women do get insurance from employers; so once again: the mandate is on insurance, no matter where or who purchases it, not on employers. And the mandate is a definite moral good.

        Personally, I suspect the bruises come from bringing your family into this; from going from abstracts to your real people (this has happened before, too). I won’t make that mistake again, there are many other ways to make my points; that’s often a very good method, and I apologize now that I see it offer offense to you.Report

      • Avatar Michael Drew says:

        shouted down, attacked for being anti-woman, accused of imposing male norms, just for arguing that the mandate was not morally necessary

        The “just” makes this necessarily a claim that they were doing all that to you in full understanding of the intended meaning of your argument. You say they attacked you “just for” arguing what you argued, which you clearly understand to mean exactly what you understand it to mean, not something else. But that’s not “just what” they attacked you for arguing. They attacked you for arguing something you didn’t argue, due to a misunderstanding. They attacked you, out of a misunderstanding, “for merely arguing” that the mandate (in particular) was not morally necessary, not “just for arguing” (“exactly for arguing,” is what that means) what you meant to argue: that the mandate (in particular) isn’t morally necessary. They couldn’t have attacked you “just for” (“exactly for”) that: they never got that that was your meaning.

        Or in any case, that’s where I was thrown off your meaning here.Report

      • Avatar J@m3z Aitch says:

        I suspect the bruises come from bringing your family into this; from going from abstracts to your real people

        Eh, no. Thanks for trying to guess my motivations, though.Report

      • Avatar Michael Drew says:

        I think I’ve located each of the originations of the relevant misunderstandings in the other thread, but I’m pretty sure nobody cares at this point. 😀Report

      • Avatar Will Truman says:

        @jaybird If an employer offers insurance then you lose exchange subsidies. Which means that it can be actively hindering access to contraceptives.Report

  4. Avatar Dan Miller says:

    I think you’ve reduced your argument so much that it’s basically irrelevant here. FWIW, if there were a real deal on the table in which the contraception mandate would be repealed but government would step in to ensure that every woman had free access to reproductive health care, I would be fine with that. My goal is to ensure that women have access to reproductive health care including contraception, not to force Hobby Lobby to do so.

    But it’s not as if that were ever on the table. Given the way that health care is provided in this country, there is no realistic alternative to the employer mandate covering birth control. The mandate wouldn’t be morally necessary, if we lived in an alternate universe where the government was willing to provide subsidized reproductive health care. But we don’t live in that universe. So to claim that the mandate isn’t morally necessary is false. It is morally necessary, because it’s the only way possible to provide women with subsidized reproductive care, in the world as it currently exists.

    If you want to change the world such that this is no longer the case, by all means! But until you’ve succeeded, a claim that the mandate isn’t morally necessary is essentially the same as a claim that subsidizing reproductive health care isn’t morally necessary, and I won’t accept that claim.Report

    • Avatar J@m3z Aitch says:


      That’s a reasoned response. I like reasoned responses.Report

      • Avatar Dan Miller says:


      • Avatar J@m3z Aitch says:

        Following up, based on Herb’s comment below, I think this is a strong argument. I think it matters just what level of politics we’re looking at. If we’re looking at the reality of the moment, then your argument is strong. If we pull back a bit and look at potentially achievable alternatives, it loses strength. I guess I’d say any moral necessity in the mandate is contingent.Report

      • Avatar zic says:

        If we’re looking at the reality of the moment, then your argument is strong. If we pull back a bit and look at potentially achievable alternatives, it loses strength. I guess I’d say any moral necessity in the mandate is contingent.

        Can we pull back a bit further? Because this is not a new issue, it’s as old as pregnancy itself.

        Women did not have much say in what recorded history was written down. There aren’t many women authors or writers at all, and very few stories about women’s lives. So this is pretty much a mystery.

        Unless you look at some other things then the writings on women’s place in the order of things by great thinkers like Thomas Aquinas. Go, for instance, read the herbals kept by monks in Aquinas’ church. I’ve done that (prep for my job at Plimoth Plantation, and I own reprints of just about every old herbal I’ve been able to find).

        What you’ll see there is a whole catalog of herbs used ‘for bringing on the menses.’ Many with absolutely no other use, too. Since pregnancy wasn’t really a sure thing until quickening, about four months in, abortion (or attempts at abortion) were likely really common; bringing on the menses.

        So I just want to point out: women have been seeking ways to better control their reproduction since we’ve been writing down the medicinal properties of plants. The notion of ‘potentially achievable solutions’ has been a very long time in coming; this is exactly what I mean by the weight of history. And to be honest, I’d be really happy if this got a whole lot more acknowledgement. A few years of progress, and it’s like it never happened, and it’s not still built in to our thought process, our religious institutions, our management philosophies, our very way of speaking.Report

      • Avatar J@m3z Aitch says:

        Hell, zic, I’ll go further than that. Before such herbs were available–and even after–infanticide has been practised as a means of birth control. But from my perspective, of course women try to control their reproduction. They’re rational actors.Report

      • Avatar Kim says:

        yeah, there’s a good reason a lot of abortifacients weren’t used for anything else — they’re broadband poisons. That they would kill the unborn before they killed the mother is merely a happy coincidence (and long term exposure would harm the woman as well)Report

    • Avatar Chris says:

      This was essentially going to be my response: to the extent that provision is a moral necessity, pragmatic considerations inevitably make certain means of production moral necessities, because they are the only means that can reliably carry out the moral mandate. That is, the moral distinction between provision and production (which is not to say the conceptual and theoretical and often very practical distinction) between them can, and frequently does break down when the rubber meets the road.Report

  5. Avatar zic says:

    So what about the mandate of requiring employers to pay for insurance contraception?

    Here’s the thing: there is no such mandate.

    There is a mandate that insurance include contraception coverage.

    I think there are alternative means of producing contraceptive care which are at least arguably equally morally acceptable. National health insurance is one. Another would be for government to negotiate with pharmaceutical firms to make contraceptives available at no cost (or with a nominal co-pay equal to what you might pay with insurance), and if necessary, we can include no-cost doctors visits as well. Another is to increase the minimum wage sufficiently to cover the cost of contraceptive care.

    While I mostly agree with this; I do feel compelled to point out that contraception care goes far beyond pharmaceuticals; and the types of care Hobby Lobby objects to include IUDs. Just a clarification, not a criticism in any way.

    Curiously, one of these alternatives–national health insurance–is favored by the very people who argue that the mandate is a moral necessity, even thought that invalidates that claim.

    The US has one of the highest rates of unintended pregnancy in the developed world, and nearly half of those pregnancies end in abortion. The gender discrimination in health insurance pre-ACA is well documented. There is ample evidence that women’s health care includes contraceptive care. So the claim you say is invalidated strikes me as a strawman argument; we have a for-profit insurance system that was regulated by states and that structure created he gender discrimination we’re discussing. I feel like you’re suggesting that if liberal solutions aren’t perfect liberal ideals, then we shouldn’t act politically, and that’s absurd. Politics is compromise, and implemented through pragmatic solutions.


    The mandate is not a moral necessity. It could be the most pragmatic means of producing access to contraceptive care, of course, at least for the time being.

    I think there’s an important distinction here: access to contraception is morally necessary. If you read the opening graf on Kyle’s post on the Catholic Church — the view that women cannot express eminence and are subjugated — the only exit from that subjugation women have is control over their reproductive lives. It is a moral imperative. The mandate is pragmatic, yes. The pragmatic means to achieve a moral end given the system we have.

    And I am sorry I got peeved at you; I hope you’ll forgive me and recognize that in a room full of men, being the only one presenting a women’s perspective is incredibly stressful. I’m grateful you made your position clearer. My big concerns here are my first point (there is no employer mandate) and my third (the moral necessity of access to contraception). And I think it crucial to remember the last in light of the weight of history, pulling in the other direction.

    Thank you, James.Report

    • Avatar J@m3z Aitch says:


      There is a mandate that insurance include contraception coverage.
      Yes, I could have phrased that better. It doesn’t affect the logic of the argument, though.

      contraception care goes far beyond pharmaceuticals;
      Please see my first footnote.

      feel like you’re suggesting that if liberal solutions aren’t perfect liberal ideals, then we shouldn’t act politically, and that’s absurd.
      That would be absurd. Fortunately I’m not doing anything remotely like that.

      pragmatic solutions
      Exactly. Pragmatic solutions, not morally necessary ones.

      access to contraception is morally necessary.
      I stipulated as much. Explicitly. I’ve made no argument against that. Indeed, this gets to the very point of my argument, which is that a critique of an argument about a means of access ought not be interpreted as an argument against access. I think I’ve once again failed to communicate.

      I hold no grudge. I just regret that discussion broke down.Report

      • Avatar zic says:

        I think get it, I’m certainly trying very hard to get it.

        There are many paths to get to a moral outcome; and each of those paths will, in some way, infringe on somebody’s beliefs and perceived rights because the notion that women freely enjoying sex with partners of their own choosing is historically fraught.

        What’s telling here is the other services, specifically for women, that were also mandated with no co-pay. Nobody’s complaining that they’ve been mandated; and it seems sort of sensible to cover maternal care, gestational diabetes, abuse screening (I’m surprised this one hasn’t drawn more ire, though), etc. So it’s not the mandate that’s the problem, really. It’s what’s being mandated — something that helps women enjoy sex without pregnancy as a consequence.

        So I agree with you that there are many ways to get to the moral outcome; the problem stems from recognizing that the moral outcome for women is considered an immoral outcome by many, and actions like Hobby Lobby’s are perceived by folk like me as a way to impose their moral values instead of letting women choose which set of moral values they’d like to embrace. Yesterday, it did feel like you were giving more weight to Hobby Lobby’s moral stance because it was their money providing the insurance. (This is why I twice reminded you that you’ve told me HI is part of wages.)

        /and I’m sorry for putting that in an inflammatory way, but it better gets at the nugget at the bottom of the moral debate.Report

      • Avatar Kim says:

        no one’s taken it to the courts, but there has been some bitching about “why must i pay for maternity care, I’m not going to have any more babies!” (or: I’m a guy).Report

      • Avatar zic says:

        @will-truman I think the IOM report lays this out pretty well, with specific sections of the law citing why that a report on gender-gap in coverage be drawn up, including recommendations.

        The mandate stems from those recommendations; which were adopted in the rule-making process.Report

      • Avatar Will Truman says:

        @zic Sorry I got mixed up on the threading. The hazards of going through the phone. I will check out the IOM report and hopefully it will answer my questions about which part of the law that part comes from.Report

      • Avatar Will Truman says:

        @zic Thanks! I got my answer (section 2713). It wasn’t in the IOM report (that I saw), but was in another link you provided on that thread.Report

    • Avatar Kolohe says:

      “Here’s the thing: there is no such mandate.

      There is a mandate that insurance include contraception coverage.”

      And there is also a mandate (somewhat delayed now) that employers above a certain size provide health insurance. And that insurance must have contraception coverage. Seems pretty straightforwardly transitive to me.Report

      • Avatar Michael Drew says:

        This gets down to what is a mandate. I don’t think the term appears in the law. There’s a “responsibility payment” to the government that is required of employers of over 50 employees who don’t provide qualifying insurance. Qualifying insurance includes contraception. All employers can choose to make the payment to the government (it’s a tax) rather than provide (qualifying) insurance. They are not mandated not to take that option.Report

      • Avatar zic says:

        No, @kolohe

        It’s an either/or — they either provide it (and receive a tax incentive for doing so) or they pay a tax to help pay for it in the exchanges.

        Given the rates I’m familiar with, that tax seems a lot cheaper than the actual cost of providing the insurance; so I don’t think you can construe it as a penalty, and in would seem to indicate that businesses perceive some benefit from offering health insurance as a benefit. (A primary one might have been locking people with pre-existing conditions into jobs.)

        One measure of ‘small business’ used by the government for a host of business services (yup, the government provides services to businesses) is ’50 employees,’ so this was a sensible place to make the requirement, in part, because small groups tend to have higher premiums.Report

      • Avatar Kolohe says:

        I don’t have to drive the speed limit either, I can just pay the ‘driving responsibility payment’, I suppose.

        If the Supreme Court says the individual mandate is a tax, I’d imagine they say that the employer mandate is a tax too. It’s on their tax return after all.

        In any case, guess what happens if companies don’t pay the responsibility payment? Men (and women) with guns show up on their doorstep.

        (everyone should have known that was coming, it’s one of my favorite things)Report

      • Avatar Michael Drew says:

        Nope. You get a citation for breaking the traffic laws, and if you pay the ticket rather than appear in court it’s a guilty plea to a misdemeanor. If you pay the employer responsibility payment it’s not an kind of guilty plea and you’re guilty of nothing. Lawbreaking would only occur if you delay your tax payment (including any “responsibility” assessment) so long as to have broken the law – i.e. if you don’t pay your taxes in full. If you pay the speeding ticket timely you’ve still broken the law – doing so is in fact an admission of it.Report

      • Avatar Kolohe says:

        Most traffic tickets are civil violations not criminal.*

        So it’s exactly like the employer mandate (btw, the pro-PPACA website linked earlier calls in a mandate too). You follow the regulation they want you to follow, no problem. If not, you pay your money, no longer a problem. You don’t pay at all, big problem.

        An offer you can’t refuse.

        *IANAL, but I am presuming that Hawaii is not unusual in this legal framework.Report

      • Nob Akimoto Nob Akimoto says:

        Continuing with your analogy wouldn’t it mean that Hobby Lobby is saying it wants the right to keep driving 5mph over the limit AND avoid speeding tickets at the same time?Report

      • Avatar Kolohe says:

        Nob, yes that’s fair. They want to say that the bible says to speed and are therefore exempt from both the speed limit and the required penalty for breaking it on 1st amendment grounds.Report

      • Avatar Michael Drew says:

        Pardon me, you’re right, civil violation. But I don’t think it’s quite the same degree of lack of violation that failing to abide by these mandates is. The traffic violation is, as you say, a violation that, I don’t know what *exactly* happens to it, but you pay your money, and it’s okay. But it is a violation for that time. And at least where I live, even the parking ticket I just got said that paying it is a guilty plea. I don’t think that evaporates into nothingness, and in any case until you’ve paid it it’s a very real violation.

        Neither failing to carry insurance individually nor opting to make the employer payment is a violation at any time. Nothing more happens legally than when someone elects not to make use of a tax incentive that you can get for some action or other under either mandate.

        Fair point on the self-reference as “mandate” in the public literature, though.Report

      • Avatar zic says:


        I think it’s worse; I know the analogy breaks down, but their presumed right to speed due to the bible is being forced onto a portion of wages — insurance — of the employee. So they’re claiming a right under the 1st that potentially violates employees 1st amendment rights.Report

      • Avatar Kolohe says:

        The scenario of religious faith in conflict with traffic laws is not all that far fetched, it seems.Report

      • Avatar zic says:

        I would not want to meet that crowd in a dark alley!

        Here, it seems a violation of their rights; but I’m sorta pro-horse and buggy, having grown up on a farm with horses and buggies.

        Did you know originally, an automobile was supposed to pull over and turn off it’s engines if horses (either ridden or pulling) approached, so as to avoid spooking them? This may be a state-law; since that’s where roads are regulated, but I’ve repeatedly heard it applied to many different parts of the country, to it was wide-spread.Report

      • Avatar Dan Miller says:

        @kolohe The 11th commandment: thou shalt not drive 55Report

      • Avatar Kolohe says:

        @dan-miller the book of Hagar, verses 1 & 4.Report

      • Avatar J@m3z Aitch says:

        that potentially violates employees 1st amendment rights.

        I don’t follow.Report

      • Avatar zic says:

        Because it abridges the employees insurance based on religion of the employer; it establishes that the employee’s compensation is based on religious principles, and limited by those principles.

        Presuming health insurance is part of compensation, then it’s a part where the law requires, “provide all these services” to all insured. But in this one specific case, employees only get some of the services available because employers are limiting the compensation based on a religious belief. I think it’s a violation of the employees 1st amendment rights to not have a

        t’s not the employers insurance, and it’s certainly not the employers right to dictate what services the employee might opt to use available through that insurance; that’s a private matter, between the doctor and patient.Report

      • Avatar J@m3z Aitch says:

        First Amendment limits government, not private parties. There’s no gov’t establishment of religion here, nor gov’t violation of employers free exercise rights.Report

      • Nob Akimoto Nob Akimoto says:

        It’s also worth noting that if your employer does provide health insurance coverage there’s a prohibition on whether or not you can receive tax credits on the exchanges via subsidies. In essence if your employer chooses to provide half-assed insurance, even if you’re eligible for tax credits otherwise, you wouldn’t be able to purchase the insurance on the exchange while foregoing your employer’s plan because you wouldn’t get the tax benefit. This is shifting the burden substantially to the employee.Report

      • Avatar zic says:

        It allows the establishment of the employers religion over the employee’s health-care plan (and presumably has some effect on the private choices the employee legally choose; remember, we’re talking ladies and their sexual behavior) when there is no religious nature to the employment.

        It makes what type of contraception the woman has access to subject to the dictates of the employers religious beliefs. This one? No, it causes abortion. That one? No, they’re all sinful. It’s the employer’s choice, then, not the employee’s, and no longer her right to decide what to do based on her own beliefs and morals.Report

      • Avatar Will Truman says:

        That strikes me a bit as a problem in the drafting of the law. Like instead of saying “If they offer you a non-compliant plan, that prevents you from getting the subsidies” it was more along the lines of “non-compliant plans are okay, but employers don’t get the tax break, employers do get the penalty, and employees are eligible for subsidies.”

        My understanding of the law is that PPACA doesn’t handle it that way (and not just on account of the last part).Report

      • Nob Akimoto Nob Akimoto says:

        No, it does actually handle things the way your latter sentence describes. (There’s a specific clause about non-compliant plans in the law.)

        The issue as it pertains to Hobby Lobby is that it wants to claim its plans are in compliance due to its religious objections.Report

      • Avatar zic says:

        Going to Will & Nob’s discussion on how employee’s are embargoed from the exchanges if their employer offers insurance, that’s where the ‘government’ part of my 1st amendment violation comes in.

        Now if Hobby Lobby’s employees could access the exchanges, carrying the monetary value of the employer-share and tax breaks with them, maybe. But they don’t have an out from a plan that’s short coverage due to religious dictates that may not be their own.Report

      • Avatar J@m3z Aitch says:


        Base that in some actual 1st Amdmt case history? Because it sounds pretty farfetched to me, but it’s been a while since I dug deeply into that literature. But without that basis, no. Constitutional violations don’t exist just because we can think up a layperson’s argument for them.Report

      • Avatar Will Truman says:

        Do you know which section of the law deals with this? I thought non-complaint plans were fined $100*day*employee.Report

      • Avatar zic says:

        @jm3z-aitch I can’t; there’s a storm moving in and a migraine storm, and I’m getting confused, which is common. My pre-existing condition is an ailment that afflicts the brain.

        It is an intuitive thought; and I’m probably wrong.

        The circular logic is that the services are determined by government, provided by the employer using the employee’s wages, yet modified for the employee into a lessor package because of the employer’s beliefs.

        If an employee cannot work on Saturday because it’s their day of worship, it’s direct belief. But if the employee can’t have sex saturday night because of the employer’s beliefs. . . just a bridge too far.Report

      • Avatar J@m3z Aitch says:

        Migraine? Dear god, stop looking at the computer now, my friend. This conversation isn’t that important. Here’s hoping it’s mild and passes quickly.Report

      • Avatar Michael Drew says:

        @jm3z-aitch @zic

        Here’s a link to a series making the argument (follow the links backward). I haven’t read it all yet; the site is acting up for me right now. I get the impression it’s not slam-dunk but not based on nothing.Report

      • Avatar Michael Drew says:

        Here’s a link to a bunch more Balkinization posts on Hobby Lobby, including the Establishment Clause series (including one of those not in the previous link).Report

      • Avatar Will Truman says:

        That’s for no-plan. I’m talking about non-compliant plans. People have pointed to Section Section 4980D, which specifies $100*individuals*days for non-compliant plans.

        That may well be for cases where they are keeping the $2000 and the tax breaks and this is to disincentivize that. What I haven’t seen is an indication that you can forego the $2000, the tax breaks, and avoid the penalty. Would such plans simply be “off the PPACA books” wherein they do pay the above and employees are eligible for the exchanges? To the extent that’s true, that’s noteworthy in a couple of respects. (Favoring, generally speaking, not-HL)Report

      • Avatar Michael Drew says:

        Another. (Culled from within those links.)Report

      • Avatar J@m3z Aitch says:


        Thanks for the links. I haven’t read through all of them yet, but I’m initially dubious about the “cost shifting” “third party burden” argument. Hobby Lobby employees aren’t being asked to behave in a way that’s in line with the owners’ religious beliefs, which initially looks to me to be the crux of the legal concept of burden here. I could be wrong, though, and I’ll try to work through it more carefully later.

        This particular line of cases is not one I’ve previously dealt with. It’s a pretty obscure question, but an interesting one.Report

      • Nob Akimoto Nob Akimoto says:

        Will, the birth control mandate falls under the Minimum Essential Coverage section, which is stuck along with the affordability and minimum value segments on qualifying plans via 4980H on the IRS guidelines (they’re the three guidelines used for determining the assessment under the shared responsibility guidelines). The fine’s therefore essentially same as not offering, but it’s assessed monthly.

        4980D deals with a different set of eligibility requirements for group plans, is my understanding, and these have more to do with things like preexisting conditions and portability than minimum essential coverage..Report

      • Nob Akimoto Nob Akimoto says:

        A generally good rundown on how 4980D requirements are different from 4980H requirements and why this difference is significant for employers.

        It’s my understanding that the contraceptive mandate is part of 4980H.Report

      • Avatar Michael Drew says:

        The last link is a formal paper that lays it out most systematically. If that problem remains through its argument, then it may not be sound. However, as a matter of defending poor @zic ‘s claim, recall that she said that employees’ 1A rights against harms resulting from an improper advancement (establishment) of religion were potentially violated by an exemption. I think we’re pretty close to establishing mere potentiality here… 😉Report

      • Avatar J@m3z Aitch says:

        Yeah, that last one is a classic law review article, 59 fishingpages. There’s a serious intellectual rot in the world of law reviews, what with being reviewed by students and promotion of overwordiness and apparently wholesale incapacity to get an argument across concisely. No serious academic discipline would ever allow such amateurishness. Even in philosophy, where it can be hard to avoid wordiness, the average article length is under half that.

        That’s neither here nor there, of course. It’s just another excuse for me to fire up one of my standard rants.Report

      • Avatar Will Truman says:

        I will try to read more later (life is intervening), but general impression is that H deals with no-plan while D deals with non-compliant plans. A plan without contraception would then seem to have more in common with D than with H. Also, D carves out an exception for church group plans, which makes me think it has more to do with contraception than with PEC.

        But I haven’t read your second link yet. Maybe that will clear it up. Will try to do so tonight, if the baby lets me.Report

      • Avatar Michael Drew says:

        Btw to nobody in particular I called @zic “poor Zic” b/c of the migraine, not for any other reason. I’m assuming that was clear, but just in case…Report

      • Avatar J@m3z Aitch says:

        I was wrong. Any type of substantial burden counts. The relevant legal question is whether the burden in this case is substantial enough to trigger a cost-shifting violation of the establishment clause. There’s no bright line, so ultimately it’s up to what the justices ate for breakfast that morning, but the out of pocket costs for contraceptives are sufficient, I would say, to base a pretty good argument on.Report

      • Avatar zic says:

        I got that, @michael-drew thanks. And you, too @jm3z-aitch. That word ‘friend’ is might comforting.

        A shot of imitrex does wonders. (It costs me $75 a pop, but I must pay that because the pill version makes me sick.) And stupid zic is more apt then poor; I think they take about 40 points off my IQ, though when they’re just starting, they open up some interesting language connections, and when they’re raging, the visual stuff can be rather mind bending.

        Thanks also for the discussions on the 1st; that was what I’d intuited as a potential, but not being a lawyer or constitutional scholar, didn’t know how to get there. I wish I understood more; I shouldabeen a constitutional/legal scholar.

        Through all these comments, Nob and Will have been documenting the non-compliant plans; and that seems the real crux here — as long as HL pays the fines for non-compliance, allowing employees to purchase in the exchanges, it seems like it should work. I am very confused about how the taxes/penalties for that are calculated; the numbers they’re using don’t look anything like the numbers the IRS code I found yesterday, but that could well be my error.

        I was also startled to see that that there are some substantial hardship penalties if the provided insurance cost to large a % of the employees wages, perhaps geared at making sure that FT employees are paid more then minimum wage?Report

      • Avatar zic says:

        @jm3z-aitch can you plug in the missing variables in the establishment burden? I can’t suss them out now, so I’m not sure what you mean. I’m sorry.Report

      • Avatar J@m3z Aitch says:

        That word ‘friend’ is might comforting.

        You’re one of the folks I really like here. A bit of back-and-forthing doesn’t change that.

        And I’m glad you’re feeling better, though lord that’s a pricey cure. I was left headachey and nauseous after advising a student who apparently doesn’t bathe or wash his clothes. I couldn’t work anymore and the fluorescents were burning my eyeballs. But fresh air–free and plentiful–was a sufficient cure. I’m counting myself lucky this time.Report

      • Avatar J@m3z Aitch says:

        Zic, i’m going to bed now, but I’ll try to do it tomorrow.Report

      • Avatar zic says:

        @michael-drew after reading through all the Balkinization posts, I’m of the opinion that at least the Hahns, owners of HL, have an ulterior motive here: legally defining that life begins at contraception.

        This post in particular, leads me to that conclusion:

      • Avatar Michael Drew says:


        I’m not inclined to think that the plaintiffs have ulterior motives not significantly represented by the basic appeals they’re making to the court. But what I would say is that the legal advocates on all sides know that an unusually large number of very significant constitutional questions are potentially implicated in this case (though that doesn’t mean that the Court’s decision will make affect all of them).Report

      • Avatar zic says:


        A good lawyerly answer to the kind of question that makes reporter’s reporty-senses go all tingly. (HL pension investments don’t align with their stated values.)

        So I’ll rephrase it, if HL wins this, it may be the foundations of legally defining the start life to conception, conflicting withe the medical start successful implantation.Report

      • Avatar J@m3z Aitch says:

        I’m no expert on lensions, but at Forbes Ryan Ellis rebuts the pension plan argument.

        Apparently, this also means that Hobby Lobby can’t have a 401(k) plan for their employees. Why? Well, according to Redden and Ungar, the Hobby Lobby owners are religious kook hypocrites. The company 401(k) plan has investments which themselves invest in companies that make the abortion drugs.

        This is a ridiculous argument for several reasons, all of which would be obvious to Redden and Ungar if they had ever run a business in their lives:

        English: Hobby Lobby store in Stow, Ohio (Photo credit: Wikipedia)

        401(k) plans are directed and invested by employees, not by employers. It’s the Hobby Lobby employees that would be disenfranchised by the twisted logic employed by Redden and Ungar here. They are the ones–not their bosses–who choose which mutual funds to invest in. This is true both of the employee’s elective deferral and the employer’s match.

        The menu of choices is primarily provided not by the Hobby Lobby employers, but by the 401(k) plan administrator, who helps select a wide menu of mutual fund (and, increasingly, exchange-traded fund) choices so that the fiduciary obligations of the plan are met.

        He also emphasizes that the 401k administrators invest in mutual funds, not individual stocks. So if this is correct, it’s quite a stretch to claim its HL making those investments.Report

      • Avatar zic says:

        @jm3z-aitch perhaps I’m wrong, but as I understand it, the employer has a great deal of control here, if the opt to use it.

        Investing 401(k) Plan Monies – After you decide on the type of 401(k) plan, you can consider the variety of investment options. One decision you will need to make in designing a plan is whether to permit your employees to direct the investment of their accounts or to manage the monies on their behalf. If you choose the former, you also need to decide what investment options to make available to the participants. Depending on the plan design you choose, you may want to hire someone either to determine the investment options to make available or to manage the plan’s investments. Continually monitoring the investment options ensures that your selections remain in the best interests of your plan and its participants.


        People are often concerned about potential moral hazards of investment funds, so it’s a field rife with filtering tools to allow you to select funds that align with your interests and moral compass.Report

      • Nob Akimoto Nob Akimoto says:

        Will, there’s actually a couple of exemptions for religious organizations in the law, but the one that’s pertinent here is the minimum essential coverage section. This is actually specifically defined in 5000A here:

      • Avatar zic says:

        @jm3z-aitch a follow on, with a second link,

        But how, exactly, does federal law purportedly require the plaintiffs to violate an obligation of their faith?

        Well, according to Hobby Lobby’s complaint, the religious beliefs of the Green family—who own and operate Hobby Lobby—“forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices.” Hobby Lobby further alleges that he HHS “mandate”—allegedly requiring Hobby Lobby to include certain contraception coverage in the health insurance plan it makes available to its employees—“coerces the Green family to violate their deeply-held religious beliefs under threat of heavy fines, penalties, and lawsuits.” (Hobby Lobby’s brief at the cert. stage clarifies that providing insurance coverage for four particular methods of birth control “that risk killing an embryo makes [the plaintiffs] complicit in the practice of abortion,” and that therefore “they cannot cover these four methods without violating their faith.” I discuss those particular forms of birth control in my next post.)


        I realize my experience here is anecdotal, but it includes years of writing about pension investment funds, and I’ve had many conversations with pension-fund managers talking about ethics of investments; it’s a common consideration. It’s very common for medical companies refuse to invest in funds that hold shares of tobacco stocks, for instance.Report

      • Avatar James Hanley says:

        can you plug in the missing variables in the establishment burden?

        As I noted above, this isn’t a line of argument I ever covered in my aborted con law studies, so I’m still thinking about the details, but I’ll try to clearly describe the main argument.

        Laws of general applicability can impinge on people’s religious freedom, and sometimes this is allowable because–according to SCOTUS–it doesn’t really deny them religious freedom. A notable case here (although many scholars think the Coury got it wrong) is Employment Division v. Smith, where Smith was denied unemployment benefits because he used drugs, peyote as a Native American Church ritual, and the Court upheld the denial of benefits. I.e., the law against using drugs doesn’t really deny Smith’s Free Exercise rights.

        Congress and states can, though, allow exemptions from generally applicable laws for religious people and organizations, even if the Free Exercise clause does not require it. But those exemptions are constrained by the Establishment clause. Too much of an exemption is an Establishment Clause (EC) violation.

        One factor that can trigger an EC violation is if an exemption produces a “significant” and “substantial” burden that is shifted onto others. Two examples are given in the law review article Drew linked. One is allowing conscientious objectors to be exempt from the draft. This is ok, because it doesn’t create a substantial burden on others, since nobody else’s likelihood of being drafted increases significantly. The other is a New York law that granted religious employees an absolute right to not work on their sabbath. Because the great majority of folks are Sunday-Sabbath Christians, this meant other employees would almost always have to work on Sunday, instead of it being in rotation. This burden was deemed significant enough to trigger an EC violation.

        In this case, Hobby Lobby is claiming the Religious Freedom Restoration Act grants them an exemption from the generally applicable rule in ACA. Assuming they’re right (I can’t pretend to know), the exemption could constitute an EC violation if it created a significant and substantial burden on HL’s female employees. I think that’s the issue you were sensing, and I imagine you’d think it does. And I think a fair legal case can be made that the burden is significant and substantial, but whether SCOTUS would agree, I have no idea. Everyday logic and legal logic often diverge.

        However if the Court ageed that a RFRA exemption created an EC violation, it would not–to get legally technical–be a violation of female employees’ First Amendment rights. You have an individual right to Free Exercise, but an Establishment clause violation is not a violation of our individual rights. It works out about the same way, in practice, but as a matter of correctly identifying what’s going on, it’s not the employees’ First Amdmt. rights that are being violated.

        There are some other potentially complicating issues. HL is not asking for an exemption from all contraceptive coverage, just IUD’s and emergency contraceptives. That’s still burdensome, but less so than refusing all contraceptive coverage. So would the Court allow that lesser burden, but not a Catholic-owned company’s broader rejection of contraceptive coverage? Who knows.

        Apparently nobody’s actually raised this in court in this case, so it probably won’t play a role in the Court’s decision-making. But it could provide grounds for another challenge–if HL wins–by one of their employees or by employees of another company. Even though the employee’s First Andmt rights aren’t violated, they are negatively affected by the accomodation allowed their company–by the potential EC violation–which gives them standing to challenge.Report

      • Avatar James Hanley says:


        It really depends how closely HL is controlling the investments then, right? But if they’re not, if they’re letting their employees make the choices, I would object to calling them hypocritical. I don’t like “kitchen sink” arguments, and I think this one may be treading in that direction.Report

      • Avatar zic says:

        @jm3z-aitch thanks for the EC explanation.

        On the pension fund, I agree — it depends on how tightly they’re controlling it.

        I have trouble reconciling the two; both are employee benefits that are actually part of wages (and I should note here: I greatly admire HL’s generous benefit plans, in many ways, they’re one of he best retail-employers out there) but they receive different levels of scrutiny because one results in employees benefitting financially from immoral practices, the other results in encouraging immoral practices; which strikes me as problematic given their perceived moral obligation, “forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices.” Report

      • Avatar Will Truman says:

        5000A appears to refer to the “Individual Mandate” rather than anything on the employer’s part. The religious exemption in that case being people who are (a) members of religious sects that do not accept health care or (b) missionaries.

        For reference sake, for anyone who is interested, here is a list of the taxes and penalties* in 4980 and 5000 with the ones we’ve discussed italicized:

        4980A – Repealed (?)
        4980B – Must offer insurance to all qualified individuals
        4980C – Failure to deliver policy (Fine: 100*employee*day)
        4980D – Non-compliant plans (Fine: 100*employee*day)
        4980E – MSA contribution requirements (Fine: 35% of employee contribution)
        4980F – Notice requirements (Fine: 100*employee*day)
        4980G – HSA contribution requirements (Fine: same as 4980E)
        4980H – Failure to offer coverage (2000*(employee-30))
        4980I – “Cadillac Tax” (40% of excess benefits)

        5000A – “Individual Mandate” (Fine: 2.5% of income or $695 plus inflation)
        5000B – Indoor tanning tax (10%)
        5000C – Foreign person tax (2%)

        * – Interestingly, though maybe or maybe not relevantly, they refer to some specifically as “taxes” and others as “penalties” though I think assessment occurs through the IRS either way. The “employer mandate” uses the word “penalty.” I don’t know if the verbiage is at all judicially binding or influential when discerning intent. Or if intent matters.Report

      • Avatar zic says:

        Concerning HL’s conscience and motivations for this law suit (sorry, @michael-drew, the reporter tingle won’t let go,) Businessweek has this:

        The Becket Fund, a nonprofit Washington law firm that describes itself as “at the crossroads of church and state” and defends several conservative causes, has devoted considerable resources to fighting the contraception requirement in the Affordable Care Act. It has filed eight other suits against the government on behalf of religious schools and nonprofits. Its lawyers called Hobby Lobby in 2012 to see if the family would also challenge the mandate. First, the Greens checked the company’s insurance plan; before then they hadn’t reviewed which forms of contraception it provided. After discovering the plan covered some of the four contraceptives they’re arguing about now—two intrauterine devices and two morning-after pills—the Greens removed them from the plan. Then, in September 2012, they filed their case in a federal district court in Oklahoma City. “I’m sure there are some of our employees who feel that we should provide that [contraception] as the mandate requires, but I think we have a large percentage that would support our position,” Steve Green told Bloomberg News in February.

        So HL initiated this law suit at the request of the Beckett Fund, which was searching for litigants to test the contraception requirements of ACA. The italics are mine, and it goes a long way to helping settle why HL’s concerns were for insurance but not for pension; they hadn’t checked until they were asked to participate in litigation.

        On another note, I found that article in looking for how many people work for HL, wondering how many might people might experience a potential EC burden; there are 16,000 full time employees; 70% are women, so something along the order of 10,000 people, presuming at least 10% of those FT female employees are beyond fertility.Report

      • Avatar zic says:

        And to emulate Will in providing resources, here’s the Beckett Fund’s HHS resource page. The Beckett Fund is the non-profit legal fund spearheading challenges to the contraceptive mandate. Fascinating stuff.

      • Nob Akimoto Nob Akimoto says:

        Again, Will, the law actually has several types of “compliance”.

        Section 4980D deals with group insurance plan compliance, which is where they talk about things like preexisting conditions, medical loss ratios, renewability and portability. These are administrative restrictions on health insurance plans that primarily deal with who they cover and when. It doesn’t (so far as I’ve found) have any references to what the plan needs to cover in terms of benefits.

        4980H deals with what’s known as the “employer cost sharing provision” which is essentially the Employer Mandate. In reference to what falls under “Minimum Essential Coverage” (MEC), 4980H refers to section 5000A in terms of what it considers “minimum essential coverage”, which in turn is a list of coverage types that’s required by individual insurance plans to qualify for the mandate.

        4980D -> Administrative/payment related restrictions and qualifications. Non-compliance here is expensive because it’s meant to prevent things like gender discrimination in pricing.
        4980H -> Employer cost sharing = “Employer mandate”. Here a plan needs to satisfy 3 criteria for the employer to avoid assessment of taxes: 1) It meets “minimum essential coverage” standards, 2) it provides “Minimum value” (ie covers 60% of patient costs), and 3) the plan is affordable (no more than 9% of the annual income in premiums). Non-compliance on any of the three means that the IRS treats it as though the employer isn’t providing insurance coverage at all.
        5000A -> The individual mandate. This also defines what counts as minimum essential coverage, and therefore what counts as minimum coverage. This section is referenced by 4980H for the purposes of coverage.Report

      • Avatar Will Truman says:

        The confusion on my part is that 4980H makes no reference to health plans at all. It may be the case that “non-compliant health plan” = “no health plan” but that’s not particularly clear (The opening line says “Large employers not offering health coverage” without reference to “compliant health coverage” or any other distinction). 4980D discusses non-compliant health plans, pertaining to the requirements in Chapter 100. The requirements in Chapter 100 do include things like PEC and the like, and also specific requirements like maternity care and mental health. It doesn’t include anything on contraception, though nothing on the law does that.

        Do you know which part of PPACA gave the HHS the ability to declare contraception a requirement? (Note, I’m not disputing that there is a section. I know that the HHS was invoking a part of the law when it issues the mandate. I just don’t know which part of the law.) That could clarify things for me.Report

      • Avatar Will Truman says:

        Nevermind, the Milliman paper you cited yesterday does explicitly state that a non-compliant plan (except where non compliant on the basis of chapter 100 or other specific circumstances) triggers 4980H. That’s the sort of confirmation I was looking for. (I did read that last night, but must have missed the blue section where it was specified.)

        Though if you do happen to know where in the law the contraception requirement does come from, I’d appreciate it for my own reference sake.Report

      • Avatar Will Truman says:

        @zic I get that. I was just wanting to know which provision of the law have the HHS the authority to follow and interpret recommendations. I’m not doubting that it did. I just want to know where it did.Report

      • Avatar clawback says:

        This is a ridiculous argument for several reasons … 401(k) plans are directed and invested by employees, not by employers. It’s the Hobby Lobby employees that would be disenfranchised by the twisted logic employed by Redden and Ungar here. They are the ones–not their bosses–who choose which mutual funds to invest in.

        So … would this mean Hobby Lobby can’t be considered to have moral responsibility for the decisions their employees make? Just trying to understand.Report

      • Avatar J@m3z Aitch says:


        It means they’re not responsible for what employees do with their own money. Insurance coverage is not–solely–the employees iwn money.

        Someone on a related post yesterday (I think) used the analogy of guns. If HL pays for a gun used by an employee in a crime, they bear moral, and likely legal, responsibility. If an employee uses their paycheck to buy a gun, HL bears no responsibility.Report

      • Avatar clawback says:

        So I guess 401k employer matching funds are the employees’ “own money”, but health insurance compensation is not?Report

      • Avatar J@m3z Aitch says:


        I’d say the difference is in who’s directing the cash flow. If an employee asks to be paid in heroin, we’d all look askance at a company that did so, but wouldn’t look askance at them if they wrote a paycheck which the employee cashed and then used the cash to buy drugs.

        Even if the employee asked to be paid in a legal commodity–say a grocery employee asking to be paid in boxes of Frosted Flakes–we’d not critique the employer for declining, but if the employee cashed the check and bought Frosted Flakes we’d see it as not the store’s problem to be concerned about.Report

    • Avatar j r says:

      The gender discrimination in health insurance pre-ACA is well documented.

      To what exactly are you referring? If you mean that women tend to pay higher premiums, because they tend to use more services then that’s not discrimination. At least not in the way that I think you mean it. That is insurance.Report

      • Avatar zic says:

        Ya know, @j-r you could google that or re-read yesterday’s discussion where I provided both links and quotes.

        You might start with the report produced by IOM that documents the gender gaps in health care and health-insurance coverage.

        (Hint: when insurance doesn’t cover a service, consuming more of that service for insurance-ratings purposes doesn’t justify increased costs; and not offering a needed service that’s gender-specific necessary care can also constitute a form of gender discrimination.)Report

  6. Avatar DRS says:

    So we’re going to try it again, are we, and this time there will be a less condescending tone to the discussion? Well, that would be nice.

    James A – since the comments are closed on the other post, I will apologize to you here for thinking you wrote “hooker” and “blow”. My mistake.

    However, you did write “sparkly pony” (whatever that might be) which does strike me as being definitely disrespectful to a woman’s POV on this issue. You might want to consider the faint possibility that you came across as rather snide.Report

    • Avatar Herb says:

      Re: The sparkle pony.

      When I read that yesterday, my first thought is “Why would you want a sparkle pony?” Seemed like a really easy way to be dismissive of your comment without actually engaging with it.

      The “I like reasoned responses” from above is similar. It’s just not as dismissive.Report

      • Avatar J@m3z Aitch says:


        I’m frequently dismissive of bad arguments, rather than wasting time taking them seriously.

        But when I say something is a reasoned response, I mean I respect it even if I’m not persuaded by it.Report

      • Avatar Herb says:

        Ah yes, James….this must be why you mentioned the sparkle pony business yesterday, because you can’t “take bad arguments seriously.”

        (Hate to say it, but I laugh when I hear libertarians talk about how they can’t take bad arguments seriously. If that were so…..there would be no libertarians.)Report

    • Avatar Jim Heffman says:

      I should think that the cross-gender popularity of “My Little Pony” should give the lie to notion that ponies or sparklieness are inherently associated with feminine females, meaning that interpreting “sparkly pony” as specifically intending to refer to women is based in bigoted stereotypical thinking.Report

      • Avatar DRS says:

        …that interpreting “sparkly pony” as specifically intending to refer to women is based in bigoted stereotypical thinking.

        I interpreted it to refer to a toy which is an inappropriate comparison to birth control in terms of importance to a woman’s daily life. I hope his mommy buys him a sparkly pony for his birthday if he wants one so bad.Report

      • Avatar J@m3z Aitch says:


        It was entirely in response to the “because that’s how I want it” line. That’s not the justification anyone else is using here. Not zic, not Shazbot below, no one. So it’s not about reducing contraceptive care to the status of toys, but about your reducing the argument for contraceptive care diwn to the level of argument for getting toys.

        “Need” can be the foundation of a good argument here. “Want” can’t bear the weight necessary to sustain the claim.Report

      • Avatar DRS says:

        Well, you know, James A., I’m afraid I didn’t get the memo that explained you had been appointed Official Thread Monitor and were in charge of making sure people didn’t use words or phrases improperly or of deciding what people really meant. So I’m going to tell you that you’re wrong: I want birth control covered in my employer-provided insurance the same way I want my paycheque to arrive regularly. That has nothing to do with toys.Report

    • Avatar Shazbot11 says:

      Yes, I equated sparkle ponies with hookers and blow.

      The point was about what Hanley is calling a duty to provide. There is a duty to provide healthcare but not luxury goods. There can be a duty to provide one but not the other.Report

      • Avatar J@m3z Aitch says:

        There is a duty to provide healthcare but not luxury goods.

        This argument has strength precisely because the healthcare is defined as more than a want. So you’re actually–albeit, I think, inadvertently–supporting my critique of the “because I want it” argument. Thank you.Report

      • Avatar Shazbot9 says:

        Who made the because I want it argument? Straw man.Report

      • Avatar Will Truman says:

        He is talking about this:

        “Hey, here’s a revolutionary concept, guys: my birth control should be covered by employer-provided insurance because – wait for it, wait for it – I want it that way.” -DRSReport

      • Avatar Jaybird says:

        It doesn’t stop being a straw man even though people are making it. They have to be the approved people making it.Report

      • Avatar Herb says:

        “Who made the because I want it argument?”

        It was made…but misunderstood. I understood it to be more of a “I’m legally entitled to (employer-provided contraception coverage)…and I want it” argument. This was misunderstood to be “I want it…so give it to me.”

        Hence, the response: You don’t get a sparkle pony just because you want one.

        Straw man indeed.Report

      • Avatar Will Truman says:

        The “meant” argument still falls short because it doesn’t, in and of itself, address the argument of whether and when one should be legally entitled to it, which is the context of the discussion.

        When discussing immigration reform, it doesn’t shed light on the issue to say “they’re here illegally” when the discussion is whether or not that should be changed.

        In this case, the law has been passed, but the courts have yet to rule on it. It doesn’t shed much light on how the courts should rule to point out that the law has been passed.

        Except insofar as DRS wants it to. Which brings us back to the initial interpretation.Report

      • Avatar Herb says:

        “The “meant” argument still falls short because it doesn’t, in and of itself, address the argument of whether and when one should be legally entitled to it, which is the context of the discussion.”

        I’m willing to accept that there will be no persuasive arguments to people (such as gun control advocates and Michael Bloomberg) as to why one should be legally entitled to certain things.

        From guns to Super Big gulps, usually “I’m legally entitled to it” and “I want it” are all that’s needed to satisfy the libertarian. But on contraceptive coverage, we need to provide them with a “why” too?

        At any rate, the “whys” have been provided, and run the gamut from “family planning” to “a comprehensive healthcare plan without contraceptive coverage is not, you know, comprehensive” There are libertarians who find none of these justifications persuasive, and that’s fine.

        But what makes them think anyone else should care what they think? Under ACA, women are entitled to contraceptive coverage in their employer-sponsored healthcare plans, and if they want it, then there better be a pretty good reason to deny it to them.

        Curious that they find “It offends my religious conscience” a somewhat persuasive reason!

        Also…..we should not pretend that the law is “up in the air” until the SC rules on this. No, the law is in place until the SC overturns it.

        And I do think Hobby Lobby will prevail, but not based on the strength of their legal arguments. I think it will be a 5-4 (political) decision, based more on the company’s corporate structure (closely-held) than any kind of philosophical interpretation of the statute.Report

      • Avatar Will Truman says:

        Herb, I am not saying that there are no arguments (I think Zic has provided some good ones). I am saying that the “meant” argument doesn’t supply them except insofar as the “want.”Report

      • Avatar zic says:

        @herb after many hours of study, I think HL may not win this case after all.

        And I don’t think Kennedy will be the swing vote, either; I think it will be Roberts, based on the corporate veil. There’s too much potential for this to play out negatively in the future for closely held corporations; if they’re allowed to project their religious beliefs through the veil, they may also hold liability that the veil protects them from, negating the very essence of the veil.Report

      • Avatar Jaybird says:

        “I want it” are all that’s needed to satisfy the libertarian. But on contraceptive coverage, we need to provide them with a “why” too?

        I think that the argument is that the other side is saying “I don’t want to provide contraceptive coverage” and we don’t know how to weigh “I WANT IT” against “I DON’T WANT TO PROVIDE IT!” above and beyond saying “Free speech is awesome, ain’t it?”

        As such, when someone says “their wants don’t matter and we should re-write the laws to override the way things currently are to make it so that the I WANT IT people win”, asking “why?” is an appropriate response.Report

      • Avatar Will Truman says:

        It really could go either way. I’m hoping it goes one way or the other on at least a 6-3 basis. I suspect I will disappointed.Report

      • Avatar Herb says:

        “I am saying that the “meant” argument doesn’t supply them except insofar as the “want.””

        Context, Will. Reading all of DRS’s comments, not just the exasperated one, leads me to think there’s more to the argument than “I want it.”

        “I think HL may not win this case after all.”

        I wish I could agree with you there, zic. There are a lot of anti-ACA folks grasping at anything they thinks will chip away at the law. This is not the first time ACA opponents have pinned their hopes on a SC rulilng.

        I do agree that Roberts will probably be the swing vote, though, not only to make up for his “betrayal” last time around, but also based on some of the questions asked during cross.

        As for the negative implications over the corporate veil, that’s why I think this will be a very narrow Hobby Lobby-centric decision. I don’t think it will actually overturn the law, overturn a previous precedent, or even create a new one.Report

      • Avatar Will Truman says:

        The context was that it was her opening, first-line comment.Report

      • Avatar Herb says:


        “As such, when someone says “their wants don’t matter and we should re-write the laws to override the way things currently are to make it so that the I WANT IT people win”, asking “why?” is an appropriate response.”

        You’re rationalizing now. As Nob has pointed out, with some weariness it seems, if Hobby Lobby doesn’t want to provide health insurance, they don’t have to provide health insurance.

        In that case, the proper response to Hobby Lobby’s “I don’t want to provide it!” would be “Well, then don’t provide it then.

        But what they’re doing is asking to provide something less than health insurance* while still getting to call it health insurance. You really think “Why do you want real health insurance*?” is the appropriate response?

        * Again, post-ACA, the definition of “health insurance” includes contraceptive coverage.Report

      • Avatar Kolohe says:

        “Well, then don’t provide it then.”

        “…but, instead, pay us some money. Or else we’ll send people with guns to your offices and residences”Report

      • Avatar Jaybird says:

        You really think “Why do you want real health insurance*?” is the appropriate response?

        Oh, that’s what you think my “Why?” question is referring to?

        For what it’s worth, I know exactly why they want “real” (for small values of “real”) health insurance.

        When I was in my last job interview, I was asked what I wanted and I told them that I wanted more money, paternity leave, a sabbatical, a light workload, and a delayed start time. I didn’t get the job, sadly. But if someone asked me “WHY?”, I would not assume that they were asking “why did you want those things?” but “why would you go for what you want in the way that you went for it?”

        I suppose I should have assumed that they were asking me why I wanted those things.


      • Avatar Herb says:

        “The context was that it was her opening, first-line comment.”

        Sorry, Will, but you can’t take “her opening, first-line comment” out of context and say that was the context.Report

      • Avatar Herb says:

        ““…but, instead, pay us some money. Or else we’ll send people with guns to your offices and residences””

        Yes, the government will send people with guns to your offices for not taking advantage of a tax break. For the first time ever.


      • Avatar Kolohe says:

        How many times do we need to go over this? If you’re an employer (above 50 peeps) and you don’t provide health insurance, you pay a penalty. Refusal to pay that penalty will result in increasingly escalating consequences, just like any other failure to pay a tax or fine would.Report

      • Avatar Will Truman says:

        I didn’t cherrypick that quote from something more substantive that she said. The full comment was:

        Hey, here’s a revolutionary concept, guys: my birth control should be covered by employer-provided insurance because – wait for it, wait for it – I want it that way. Mind-blowing, isn’t it? As an employee I should be valued enough to have my wishes taken into account and not have to justify them to a bunch of male dicks.

        That was her contribution to the conversation. She wants it, she feels she should be valued enough to have her wishes taken into account. It is, essentially, about what she wants. She later tips her hat to the merits (a good investment) but the initial comment certainly came across to me as its own argument. She wants it. She should get it. She shouldn’t have to justify to others why it should be given to her.

        That was the argument. It was a weak one. Adding “she is legally entitled to it” (which she didn’t add) doesn’t particularly strengthen it. Adding Zic’s argument does add to it, like adding five to zero makes five.

        Beyond all that, if we’re talking about context, we’re also talking about DRS’s posting history here. I will refrain from commenting further, except to say that taking that comment at face value without larding it up with charitable context is actually the most straightforward way to proceed. I did think James’s response was too glib (I declined to respond because I couldn’t think of a productive and non-glib response), but he was responding to what was said and not to some strawperson.Report

      • Avatar Herb says:


        “For what it’s worth, I know exactly why they want “real” (for small values of “real”) health insurance.”

        That’s awesome. Have you come up with a good reason why Hobby Lobby should be allowed to deny it to them?Report

      • Avatar Jaybird says:

        Have you come up with a good reason why Hobby Lobby should be allowed to deny it to them?

        Is buying insurance on the Obamacare exchange an option where they are? If it is, I don’t think that Hobby Lobby would be “denying” them anything by merely “not giving” something to them.

        Now, if they were Lobbying to make sure that no insurance ought to be available outside of that offered by employers, then that’d be something else again.

        But I’m not down with the whole “not giving” == “denying” dynamic.

        I mean, if I don’t give you marijuana, I’m not “denying” you marijuana. Buy it yourself.Report

      • Avatar J@m3z Aitch says:


        “Legally entitled” is not found in DRS’s comment. It’s kind of disingenuous to add your own words to her comment so you can declare my response a straw man.

        As to libertarians and “wanting,” I wish I was more surprised that you can’t distinguish between wanting something you intend to pay for yourself and wanting something that you expect others to provide for you. When a libertarian says, “I want my big gulp,” they’re not saying “so 7/11 should be required to provide it to me.”

        There may be legitimate grounds for saying group A should be required to provide something to group B, but it’s a higher bar to clear in comparison to saying B should be allowed to provide something fir themselves.Report

      • Avatar Herb says:


        “If it is, I don’t think that Hobby Lobby would be “denying” them anything by merely “not giving” something to them.”

        Hobby Lobby would be very surprised to discover they are not trying to “deny” their employees something. It’s why they have hired lawyers and filed suit and brought this case to the Supreme Court.

        They seek to deny their employees a health plan that includes contraception coverage. They admit this openly. It’s the primary motivation for the lawsuit.

        Problem is that, in the post-ACA environment, a health plan that doesn’t include contraception coverage is no longer considered, you know, “a health plan.”

        @jm3z-aitch “It’s kind of disingenuous to add your own words to her comment so you can declare my response a straw man.”

        James, you’re a smart guy, I can tell. Which is why I know you didn’t think DRS was asking for a pony and why I think it’s sad when you write this stuff:

        “I wish I was more surprised that you can’t distinguish between wanting something you intend to pay for yourself and wanting something that you expect others to provide for you. When a libertarian says, “I want my big gulp,” they’re not saying “so 7/11 should be required to provide it to me.””

        Another straw man? Let me ask you this:

        When my insurance premium gets taken out of my paycheck every two weeks, am I in the “pay for myself” category? Or am I “expecting others to provide for me?”

        Think clearly on this one. Remember I’m making an actual monetary contribution. Remember my boss’s contribution is part of my compensation package.

        Care to revise that “expecting others to provide for me” nonsense?Report

      • Avatar J@m3z Aitch says:


        Will explained the “want” argument perfectly, from my perspective. As long as your critique depends on adding words that were never uttered, I don’t agree.

        As to the insurance, you don’t cover the whole cost, nor do I. So, no, I’m not going to back down and pretend the distinction doesn’t exist.

        Look, I’m a libertarian, so I’m not a big fan of the idea that one person has any responsibility to another beyond leaving them alone* and fulfilling any contractual agreements made. But if we’re going to say providing something to someone is necessary as a public policy issue, I say it should be paid for by the general public. I have a loathing for off-loading those costs onto a subset of the public, for making only some pay for what we see as a public necessity. That us, I agree that a national health insurance plan would be preferable–or at least nationally provided contraceptive care–but I don’t really agree that ACA is a second-best.

        That said, I don’t care enough about the insurance mandate to put effort into fighting against it. As a libertarian, I’m a helluva lot more worried about abusive cops and the growth of executive power. Protecting corporate owners from an insurance mandate is way down my list of concerns.

        *This is often taken wrong. To say that John Doe and I have no responsibility to each other exceptto leave each other alone, I am not arguing for a-social individualism. My neighbor often runs past my house with a snowblower, and I appreciate it. My next door neighbor and I have a standing agreement that when he mows the part of my front yard that abuts his, I’ll give him a beer. I have about three friends with whom I regularly do a labor exchange, working on each others’s houses or yards. One of them is just down the street and we allow each other to borrow tools without asking. All I mean by not having responsibility toward is that none of this is duty, and cannot legitimately be compelled, not that being good and generous is to be disdained.Report

      • Avatar Herb says:

        “As to the insurance, you don’t cover the whole cost, nor do I.”

        You’re right, but that’s kind of irrelevant. Not covering the whole cost doesn’t make it any less mine. And the portion that’s covered by my employer, that doesn’t make it theirs.

        It’s part of my compensation, just like the paycheck my contribution comes out of. Hobby Lobby would have no standing to tell me I can’t spend my paycheck on contraceptives, so what –besides a category error– makes my health insurance so different?

        Truce time:

        And you know, as a former libertarian, I’m not a big fan of letting libertarian slogans do my thinking for me. Over the years, I’ve found myself more and more in agreement with libertarian ends while completely disagreeing with the means.

        This seems to be one of those times when the libertarian means results in a not-so-free end. My boss’s religious beliefs affecting my medical plan? How is that being “left alone?”Report

      • Avatar J@m3z Aitch says:


        Peter being required to give a certain type of compensation to Paul is not about Paul being left alone. To say “you’re required to give something to someone, so it’s not yours to claim anymore,” begs important questions,

        Myself, I’m a former liberal. If you think I let libertarian slogans do my thinking for me, stick around a while.Report

      • Avatar Herb says:

        @jm3z-aitch “To say “you’re required to give something to someone, so it’s not yours to claim anymore,” begs important questions,”

        Sure. But that’s not what’s happening in this case. Hobby Lobby is not required to give health insurance to their employees. They are encouraged to do so. Our healthcare policy imposes costs if they decide to opt out, but it makes it worth their while if they opt in.

        That does not make it a requirement. That makes it a nudge. It’s a very convincing one, yes, but still just a nudge.

        As for the libertarian slogans bit, I guess what I mean is this. The libertarian’s thinking is so organized around certain key concepts that the programming can get a little buggy. Frame the issue as “religious liberty” and their brains start whirring in that direction. “Sandra can buy her own birth control. How dare the State coerce her employer to buy it for her!”

        But that’s not actually the “liberty” direction.

        Let me get hyperbolic for a moment: You could interpret “religious liberty” to mean that the Evangelical employer should be free to opt out of contraceptive coverage if they so choose. Seems right, but that differs from the idea that the Inquisitor should be free to burn the heretic if they so choose only in severity, not actual principle. (Let’s stipulate that the harm caused to the injured parties also only differs in severity.)

        Truth is, in order to achieve true “religious liberty,” religious institutions must be restrained. They must be coerced into not burning the heretic. That’s not to say they must be repressed and subjugated, just restrained.

        In other words, sometimes you have to tell them no. Sucks for the church, but that’s how we do it in a liberal society such as ours.Report

  7. Avatar Shazbot11 says:

    Sure, producing public education by enslaving professors would be morally bad. There is a real harm that isn’t necessary that is done to the profs. Certainly not as good a way of producing things as paying them.

    However, this is not at all analogous to requiring corporations (through taking away tax breaks, which is hardly slavery) to pay for comprehensive insurance that covers contraception.

    Moral questions about production might be distinct from moral questions about provision in some cases but clearly not in the case of Hobby Lobby. The only thing that is changing in the various modes of producing the healthcare (once you accept a moral duty to “provide it”) is how many people the money goes through. The money is going from Hobby Lobby to the people making the IUD’s. The only difference is how many middlemen it goes through before it gets there. And that surely can’t be morally relevant.

    If the government sent someone to collect the money from Hobby Lobby and then bought the insurance with it, would that be materially different than if the government sent someone to take the Hobby Lobby people to an insurance broker and hold the pen while the check was signed.

    What bothers people is that the means of producing comprehensive healthcare in Obamacare exchanges, in National Healthcare, etc. are all basically the same morally, unlike the enslaving profs versus hiring them.

    In a way Hobby Lobby is more free in this case than in taxing them directly and using the money to buy health insurance because they could fore go the tax break on moral grounds or whatever (stupidly).Report

  8. Avatar Brian Murphy says:

    That was some truly epic mansplaining. Somebody get this man a TV show!Report

  9. Avatar Jaybird says:

    Eh, I think I’ve come around on this.

    Look at two groups of women:
    1) is fully capable of procuring their own birth control
    2) is less than fully capable of procuring their own birth control

    Which of these groups would you suspect would be better able to produce a want-free environment for wanted children?

    It’s easily argued that, as a society, we’re all better off if there would be fewer children raised by parents who don’t have all of the necessary tools to raise kids. Let’s make us all better off.Report

  10. Avatar zic says:

    @jaybird there’s stuff like this from Freakonomics.Report

  11. Avatar j r says:

    I am somewhat sympathetic to Hobby Lobby (but only in a very narrow way) and I think that the individual/employer mandate is bad law, but I hope that they lose this case.

    The purpose of religious freedom is to protect individual conscious from the tyranny of the majority. This is quite clearly a case of a group of people trying to invalidate a law that they don’t happen to like very much using whatever legal means that they have available. I’m glad that they get their day in court, but I hope that they lose.

    That said, I will re-state the argument that I made on the other post. One side says keep the government out of my healthcare and out of my religion. The other says keep the government out of my uterus. Neither side, however, really means it. Social conservatives tend to be quite happy to use the power of the government to compel people towards socially conservative behavior. Now that they are losing, they suddenly pretend to be libertarians. I ain’t buying it.

    And progressives all of a sudden want employers and the government out of a relationship that they have explicitly brought employers and the government into. You cannot eat your cake and still have the same cake after you’ve eaten it. Well, you can, but it gets awfully messy.Report

    • Avatar Jaybird says:

      Now that they are losing, they suddenly pretend to be libertarians. I ain’t buying it.

      This is something ubiquitous.

      I wish it meant something bigger than “if you can’t appeal to numbers, appeal to principle” but… sadly, I think that that’s all it means.Report

    • Avatar Zane says:

      @j-r : “And progressives all of a sudden want employers and the government out of a relationship that they have explicitly brought employers and the government into.”

      It’s only fair to point out that many progressives think that the ACA is the best that could be done at this time. I don’t think most progressives have any particular happiness that healthcare remains tied to employment for most. Progressives supported but were unable to get a single payer option through Congress. And progressives didn’t create employment-dependent health coverage. That was a pre-existing condition. Government and employers were both actors in regulating and policing health coverage long before the ACA came along. Progressives pragmatically supported the ACA because they believe it is better than what preceded it, not because “Yay, we get to push corporations around!”Report

    • Avatar Creon Critic says:

      @j-r @jaybird
      I don’t think anyone’s pretending to be a libertarian. There’s just a genuinely different reading of the set of principles involved. First off, boiling issues like conscience, employee rights, and reproductive rights down to slogans for entire political philosophies (or sometimes fitting them into comment boxes), you’re bound to lose some important nuances.

      Second, what I wrote in the other thread,

      And thus a debate, competing sides offering their competing conceptualizations of what is Right, Good, and Just. With you offering the critique, for instance, of a “higher cost to individual liberty and self-determination”. With the left offering that the libertarian construction of human rights is incomplete and inadequate, leaving people without a firm politico-legal demand of the state for Freedom from Want.

      I don’t think it is just an academic debate – I think this dispute, the contours of rights, is a major fissure in any sort of durable left-libertarian coalition. There are certainly values that kind of resonate with one another in a potential left-libertarian entente cordial, but important cleavages remain.

      There’s a significant example that is in this thread. Zic says “Now people can crow all they want about this; but it’s not their business.” That resonates in a certain way when said on the left. It holds out the prospect of being a note of agreement between the left and libertarians. And then observe how Brandon Berg deploys the same words to read the government out of it, “It’s not your business, and it’s not mine, and it’s not pundits’ and it’s certainly not the government’s. A job’s compensation package is the employer’s business, and the employee’s, and nobody else’s.”

      I’m not saying Zic offers olive branch and Brandon Berg shoots it down. I’m saying, this same formulation “not X’s business” can mean dramatically different things depending on your conceptual priors.


      • Avatar Jaybird says:

        “Get your government hands off of my Medicare.”Report

      • Avatar zic says:

        Zic says “Now people can crow all they want about this; but it’s not their business.” That resonates in a certain way when said on the left.

        Actually, zic said this because a people have, by law, a right to medical privacy, both from the 14th and HIPPA.

        Roe V. Wade was settled on the right to privacy in the 14th.Report

      • Avatar Jaybird says:

        I don’t know about this whole privacy being sacrosanct thing. What are they trying to hide?Report

      • Avatar James Hanley says:

        Roe V. Wade was settled on the right to privacy in the 14th.

        Not exactly. The 14th has no right to privacy. No amendment does. The right to privacy, as stated by Justice Douglas in Griswold v. Connecticut, is found in the “penumbras” of several amendments in the Bill of Rights and of the 14th.Report

      • Avatar Herb says:

        “The right to privacy, as stated by Justice Douglas in Griswold v. Connecticut, is found in the “penumbras” of several amendments in the Bill of Rights and of the 14th.”

        Also…..HIPPA. Which is pretty clear on the subject.Report

      • Avatar Will Truman says:

        HIPAA applies more specifically to medical records.Report

      • Avatar J@m3z Aitch says:


        Yes, but from her mention of the 14th, my take was that zic meant the constitutional right to privacy. HIPPA is merely statutory, and could easily be repealed. It’s a very different beast.Report

      • Avatar Brandon Berg says:

        Actually, zic said this because a people have, by law, a right to medical privacy, both from the 14th and HIPPA.

        Putting aside the fact that the right to privacy is not actually in the Constitution, an employer choosing to provide health insurance that doesn’t cover contraceptives has no more privacy implications than an employer choosing to provide health insurance that doesn’t cover plastic surgery. In fact, paying out of pocket for contraceptives is more private than having it covered by insurance, since it doesn’t get the insurance company involved.Report

    • Avatar zic says:


      sex and drugs and rock and roll.Report

    • Avatar Brandon Berg says:

      Neither side, however, really means it.

      NSDI! NSDI!Report

  12. Avatar Patrick says:

    Yeah, we were both talking around each other on the other thread.

    For those that are curious, the thread was shut down due to the auto-closing of comments on posts after a certain amount of time, not because anybody thought closing the comments was necessaryReport

  13. Avatar zic says:

    @will-truman , emulating Kazzy and calling you down here:

    The contraception mandate flows out of Section 2713, from the Thomas website:


    `(a) In General- A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for–
    `(1) evidence-based items or services that have in effect a rating of `A’ or `B’ in the current recommendations of the United States Preventive Services Task Force;
    `(2) immunizations that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved; and
    `(3) with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration.
    `(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.
    `(5) for the purposes of this Act, and for the purposes of any other provision of law, the current recommendations of the United States Preventive Service Task Force regarding breast cancer screening, mammography, and prevention shall be considered the most current other than those issued in or around November 2009.
    Nothing in this subsection shall be construed to prohibit a plan or issuer from providing coverage for services in addition to those recommended by United States Preventive Services Task Force or to deny coverage for services that are not recommended by such Task Force.
    `(b) Interval-
    `(1) IN GENERAL- The Secretary shall establish a minimum interval between the date on which a recommendation described in subsection (a)(1) or (a)(2) or a guideline under subsection (a)(3) is issued and the plan year with respect to which the requirement described in subsection (a) is effective with respect to the service described in such recommendation or guideline.
    `(2) MINIMUM- The interval described in paragraph (1) shall not be less than 1 year.
    `(c) Value-based Insurance Design- The Secretary may develop guidelines to permit a group health plan and a health insurance issuer offering group or individual health insurance coverage to utilize value-based insurance designs.


  14. Avatar MyNameIsNotRelevant says:

    From the article, “To begin, I think Hobby Lobby should lose their case. Others have made arguments about why a corporation doesn’t have religious freedom interests–I agree with them, so I don’t need to repeat those arguments here.” However, cases like Church of the Lukumi Babalu Aye, Inc. and Ernesto Pichardo v. City of Hialeah show those arguments to be in error. Clearly, nothing about being a corporation is incompatible with religious freedom interests. While One might argue, “But that is a case involving a non-profit corporation; for-profit activities are different”, cases like Sherbert v. Verner and Thomas v. Review Board involved Individual profit and religious freedom interests were upheld. Even in the case of U.S. v. Lee, a recognition of of religious freedom interests was made by the court, though the case ultimately did not turn on such a point.

    Additionally, from the article, “I’m exasperated by the failure to properly distinguish between provision and production when making moral arguments.” — Most of the coverage appears to Me to be about the legal arguments and not the “moral” arguments.Report

    • Avatar Will Truman says:

      Thanks for this, @mynameisnotrelevant . I was initially a big fan of the “corporations don’t have religious freedom” though have soured on it a bit as I have thought through the repercussions (lesson: beware of convenient arguments!). I was wondering what the caselaw on it was.

      Can anyone provide good caselaw that refutes this? Specifically as it pertains to relatively tightly-knit or family-held corporations (ie excluding those with open stock purchasing availability)?Report

    • Avatar J@m3z Aitch says:

      I think this is in error. While the Court has stated in passing that for-profit corporation status does not eliminate religious freedom, they have never ruled on that basis. It is mere dicta, not settled law. For example, in U.S. v. Lee, while religious freedom was noted respectfully, not only did the case not turn on it, but the claim of religious freedom was overruled. As quoted here, the Court ruled;

      “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.”

      There is some suggestion that a for-profit whose sole business is distinctly religiously based, like a publisher or bookseller that deals only with religious materials, might find protection under this basis, but probably not a for-profit–such as HL–that deals primarily in secular products.

      MyName’s point could be taken up by the Court and made the point of the ruling. But it would in fact be unprecedented. More likely would be a Lee-like ruling.

      I do wonder, though, if HL’s status as a “closely held corporation,” rather than one traded regularly on the exchanges, might be a hook some conservative justices find appealing, even though it would contrast with Lee.

      Note: the above is intended to be purely descriptive, and should not be read as advocacy of any of the possibilities discussed.Report

  15. Avatar Herb says:


    “I didn’t cherrypick that quote from something more substantive that she said.”

    Fair enough. But “context” should take into account the entirety of the conversation, not just isolated quotes from a single commenter.

    “Beyond all that, if we’re talking about context, we’re also talking about DRS’s posting history here.”

    Ah, so there’s a history and some prejudice I’m not aware of… it.Report

    • Avatar Will Truman says:

      It wasn’t an appraisal of the whole pro-mandate spectrum – of which both James and I are a part or at least not really opposed to, broadly speaking. It was an appraisal of a particular argument, put forward by the particular person I quoted. A bit of “arguing against the weakest argument of the opposition” if there actually were an opposition involved here, but the debate moves to the specific because as best as I can tell north of 90% of the commentariat is pro-contraception availability.

      I prefer to think it as “assessing comments made by people based on their previous commenting participation.” 🙂Report