Complicity and Contraception: Rethinking Hobby Lobby’s Claim of ‘Substantial Burden on the Exercise of Religion’

Within the next month, the United States Supreme Court will decide whether for-profit corporations shall receive an exemption from providing certain types of contraceptives that are otherwise mandated for healthcare coverage by federal law to employees on the basis of the religious objections of the corporations’ owners.  The two cases considered in tandem by the Supreme Court, Sebelius v Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corporation v Sebelius (Hobby Lobby from here on out), feature a Christian-owned arts and crafts chain and a Mennonite Christian-owned furniture manufacturer, the owners of which object to four specific forms of birth control that they claim cause abortions.

In making their argument for an exemption, the claimants rely mainly on the Religious Freedom Restoration Act (RFRA) passed by Congress in 1993. The RFRA states, “Government shall not substantially burden a person’s exercise of religion…” unless “that application of the burden to the person – 1) is furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest.” This sets up three tests for judging the permissibility of a government act: the substantial burden test, the compelling interest test, and the least restrictive means test. For the claimants in Hobby Lobby to be successful under the RFRA, the Supreme Court would need to decide first that the government’s ‘contraception mandate’ is indeed a ‘substantial burden’ and second that the provision of contraception is both a compelling government interest and that employer based health insurance is the least restrictive method for securing that interest.

Scholars and journalists have taken various approaches in responding to the range of questions related to these three tests. However, I argue here that Hobby Lobby’s exemption claim can be denied without diving into this spectrum by showing that it fails to meet the first test: the government does not place a substantial burden on the exercise of religion by Hobby Lobby and Conestoga Wood in its ‘contraception mandate.’

The basic belief that Hobby Lobby’s claim for an exemption rests upon is that “offering these [four types of contraceptives] in their health plan makes them complicit in abortion” (pg. 35).  The argument I wish to advance is quite straightforward: offering these contraceptives as part of a broad health plan – even granting the scientifically disputed claim that they prevent implantation of the embryo and thus cause abortion – does not make the corporation complicit in the act of abortion. The claimants, I will seek to show, operate on a flawed understanding of decision-making and moral responsibility for action in believing that they are complicit in abortion by offering their employees a healthcare plan that includes access to the contraceptives in question.

To begin, consider that the coverage of contraception is a component of the broader mandate that group health plans cover ‘preventive health services,’ which is in turn a requirement of the general mandate that employers cover health insurance for their employees or pay a ‘shared responsibility payment.’ As the name of the payment suggests, we have decided that large employers have a basic responsibility to provide their employees with broad healthcare coverage, which includes both treatment and prevention, as key partners of the government in the quest to provide universal healthcare coverage in the US. This dedication to universal coverage reflects the importance, if not primacy, of health in pursuing our plans and goals in life, especially our ability to contribute meaningfully to society, our families, and our own welfare as members of the workforce.

This ‘shared responsibility,’ however, is limited to the provision of broad and – importantly – indeterminate healthcare coverage. The specific determination of what that provision of healthcare will entail is properly conceived as a private decision made by a patient in consultation with her doctor. Health decisions, specifically in this case decisions about contraception, are deliberated, decided, and acted upon by two moral agents only within the context of a private consultation: the patient and doctor. Consequently, moral responsibility for these actions – whether the decision is for abstinence, condoms, a hormonal birth control pill, or an IUD – falls squarely and solely on these individuals.

As it is impossible for the corporation or owners to observe, voice opinion, or affect this private action, they simply cannot bear responsibility for it. Indeed, the theoretical possibility of the patient and doctor privately (if illegally) contravening a corporation’s limitations on contraceptives in a hypothetical world in which Hobby Lobby’s claimants carry the day verifies that these two are the only ones that can be responsible for such reproductive decisions and actions. As such, the two corporations are simply mistaken in assuming that they are or even can be ‘complicit’ in such decisions. Their responsibility is to pay a lump sum for health insurance provision; the extent of their ability to affect employees’ decisions in the private space of the doctor-patient relationship – and thus the extent of their responsibility for those decisions – ends there.

In other words, responsibility for the provision of health insurance is distinct from the responsibility for the healthcare decisions made after that provision. Hobby Lobby and Conestoga are no more complicit in abortion in providing health insurance than when they cut a paycheck for a female employee who then uses the money to purchase one of the very same contraceptives in question, particularly since health insurance has been used and interpreted historically as a form of employee compensation.

Importantly, this argument does not deny that reasonable disagreement on matters of the beginning and permissible ending of life is possible. Indeed, this analysis of moral responsibility for action – in which the corporation is not responsible at all for the reproductive decisions of its employees after providing broad health insurance – is entirely compatible with the corporation owners’ own deeply and sincerely held beliefs that life begins when an egg is fertilized, certain methods of contraception work after this point, and that these methods thus represent morally impermissible abortions. Rather than challenging these religious convictions, this argument only challenges the claimants’ metaethics of ‘complicity’ in action. And because the claimants are not, in fact, complicit in the act of abortion, the government has not “substantially burdened a person’s exercise of religion.”

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2 Responses to Complicity and Contraception: Rethinking Hobby Lobby’s Claim of ‘Substantial Burden on the Exercise of Religion’

  • Owen Schaefer says:

    These are a compelling set of arguments with which I’m inclined to agree – but I wonder how much of one’s intuitive judgments about complicity in this case are colored by (despite accepting for the sake of the argument) a rejection of the view that birth control is deeply wrong, akin to killing someone (which is the combination of the view that abortion is murder and birth control is abortion). We might be more willing to say Hobby Lobby isn’t complicit because complicity has a negative moral valence (we rarely say someone is ‘complicit’ in a good or even neutral act), and we (contra Hobby Lobby) think birth control is perfectly fine. Compare, then, a case where one’s intuitions might go in the opposite direction, because one accepts the premise that the relevant action is wrong: gun sales.

    Suppose in a strange combination of pro-gun attitudes and welfarism, a state decides that to best protect people, everyone should have a gun. It requires, as part of employer contributions, free guns be offered to employees. A Quaker employer objects; they’re pacifists and would be complicit in potential gun violence if they provided the guns. Now, it’s still true, the individual has choice and the employer doesn’t have control over how the individual will use the gun. But it still seems fair to say that the employer is potentially complicit in resulting gun violence, to the extent that they were essential enablers; they are being forced to violate their religious tenets by facilitating violence. (the difference between that and the employee using money to buy a gun and shoot someone is that money is fungible and has many potential uses; guns’ primary use is killing, just as birth control’s primary use is contraception)

    But maybe you think there’s no complicity even in the gun case (or, if you’re pro-gun, substitute some product you think is wrong to distribute widely), and the Quakers shouldn’t get an exemption? In which case I think the argument does become much stronger. Most accounts of complicity have an intentionality component, after all. So, maybe there’s no complicity because they were forced by law to offer the guns/birth control. That makes sense, but then wouldn’t it be virtually impossible to violate the RFRA by making someone complicit in irreligious acts? Any time a law violated someone’s religious convictions, it would be acceptable because they were forced to do so and so are not complicit in the violation. That suggests to me that (contra the quote from Hobby Lobby) the RFRA shouldn’t be interpreted as seeking to avoid complicity in religious violations at all (indeed, the term ‘complicity’ doesn’t appear in the law at all), but instead forcing people to commit or facilitate* religious violations regardless of intention. Under that interpretation, there’s a much stronger claim that Hobby Lobby is indeed being burdened.

    *Admittedly, you could put serious pressure on the notion that it is burdensome to be forced to facilitate religious violations. If a Christian has a Muslim employee who states that a majority of their salary goes to a mosque, this interpretation problematically implies it would be acceptable to fire that employee on the grounds that employment facilitated blasphemy. So maybe mere commission is the relevant standard, in which case Hobby Lobby’s case falls apart – they’re not being forced to take birth control themselves, after all. There would still be some people the RFRA would protect (Catholic priests couldn’t be required to perform same-sex marriages, for instance), but it would be a narrow class.

  • Nana says:

    The problem with your argument is that they self-insure, and rather than pay lump sum to an insurance company, they pay out directly, making them fiancially, and morally, responsible.