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.’ Continue reading
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I’m working on a paper entitled ‘Cyborg justice: punishment in the age of transformative technology’ with my colleagues Anders Sandberg and Hannah Maslen. In it, we consider how punishment practices might change as technology advances, and what ethical issues might arise. The paper grew out of a blog post I wrote last year at Practical Ethics, a version of which was published as an article in Slate. A few months ago, Ross Andersen from the brilliant online magazine Aeon interviewed Anders, Hannah, and me, and the interview was published earlier this month. Versions of the story quickly appeared in various sources, beginning with a predictably inept effort in the Daily Mail, and followed by articles in The Telegraph, Huffington Post, Gawker, Boing Boing, and elsewhere. The interview also sparked debate in the blogosphere, including posts by Daily Nous, Polaris Koi, The Good Men Project, Filip Spagnoli, Brian Leiter, Rogue Priest, Luke Davies, and Ari Kohen, and comments and questions on Twitter and on my website. I’ve also received, by email, many comments, questions, and requests for further interviews and media appearances. These arrived at a time when I was travelling and lacked regular email access, and I’m yet to get around to replying to most of them. Apologies if you’re one of the people waiting for a reply.
I’m very happy to have started a debate on this topic, although less happy to have received a lot of negative attention based on a misunderstanding of my views on punishment and my reasons for being interested in this topic. I respond to the most common questions and concerns below. Feel free to leave a comment if there’s something important that I haven’t covered. Continue reading
This month an article published in the American Journal of Public Health (AJPH) outlined the results of a study on self-harm amongst jail inmates in New York City. Data on all jail admissions between January 2010 and October 2012 was analysed and the authors noted the following: “We found that acts of self-harm were strongly associated with assignment of inmates to solitary confinement. Inmates punished by solitary confinement were approximately 6.9 times as likely to commit acts of self-harm after we controlled for length of jail stay, SMI [serious mental illness], age, and race/ethnicity.”
This research provides an interesting springboard for a discussion. Can solitary confinement ever be justified, and if so, in what circumstances? Continue reading
As the Ukrainian crisis continues to unfold, attention has shifted from the deposed president Viktor Yanukovych to the Crimea peninsula. Crimea has an ethnic Russian majority and as such are much less sympathetic to the pro-Western uprising that toppled Yanukovych (see the very useful maps posted here). Now the Russian military has occupied the region, and there is some movement towards either independence or annexation into Russia. Western powers are unsurprisingly outraged at this military intervention, with UK Prime Minister David Cameron saying there is “no excuse” for Russian occupation. I would like to suggest that the case against Russia’s use of force is not as clear cut as it first appears, as it could potentially be justified on the grounds of promoting Crimea’s right to self-determination. Still, careful attention to how recent events unfolded do indicate that both the occupation and recent (quite quick) moves for separation from Ukraine are illegitimate on relatively minimal procedural grounds. Continue reading
How the Danziger Story Advances the Abortion Debate in America: Actual Futures, Moral Status, and Common Ground
It has become commonplace in recent years to note that the ‘abortion debate’ in America has become entrenched. Indeed, there seem to be few issues in contemporary politics that elicit less common ground than the abortion debate finds in its stalwartly pro-choice and pro-life opponents. It is just as common, if not more so, these days to speak of the ‘attack on Roe v. Wade’ or ‘the attack on women’s rights,’ particularly in light of recent findings that more abortion restrictions were enacted between 2011 and 2013 in the U.S. than in the entire previous decade. Now more than ever, especially for the pro-choice movement, it is necessary to conceptualize novel approaches to the questions of the beginning, end, and quality of life that sit at the heart of the abortion debate. Here I examine a recent case and how it has the potential to advance this debate. Continue reading
On 6 December, Prof. Dr. Bernward Gesang, Chair of Philosophy and Ethics of Economy at the University of Mannheim, presented an interesting talk on “Do individuals have duties to protect the climate?” exploring if individuals have moral obligation to change their behaviours to mitigate climate change from an Act Utilitarian perspective, i.e. the view that an act is permissible if and only if no other acts bring higher overall utility. Continue reading
The Guardian newspaper has today launched a campaign to end female genital mutilation (FGM). This coincides with evidence that, despite being illegal, a significant number of young women from the UK undergo the practice. Globally, more than 125 million living women have had some form of FGM performed.
Over at Slate, Tanner Colby has a critique of liberal US school busing policies that’s well worth reading. Some historical context: in the wake of Brown v. Board’s 1954 mandate to integrate school districts, a pattern of ‘white flight’ emerged – white parents moving from city centers to the suburbs to avoid having to send their children to racially integrated schools. School busing was a court-enforced reaction to this movement, designed to force the children of those who had fled to the suburbs to integrate by busing students in the whiter suburbs to more minority-dominated schools and vice-versa. Busing has more recently been rolled back by various courts and local governments, much to the chagrin of liberals – but Colby argues the policy was actually a massive failure to begin with. He makes some important points concerning a central goal of integration (to get students of different races to truly socialize and interact, not merely sit in the same classrooms and cafeterias) that busing did not achieve, and towards the end offers a glimpse of an alternative Colby thinks is superior. This alternative essentially involves compromising with racism by having blacks be bused to predominantly white schools, but (acceding to the racially-motivated demands of white parents) not vice-versa. Yet despite the allegedly good consequences of the compromise, there are inherent problems with it. These problems, I submit, give us strong reason to reject compromising with racism in this instance. Continue reading
U.S. President Barack Obama’s recent interview in the New Yorker was surprisingly interesting. While some have noted his disapproval towards a (hypothetical) son playing pro football out of concussion concerns, the more remarkable comments concern marijuana: he says it’s “not very different from…cigarettes” and “I don’t think it’s more dangerous than alcohol.” He did not come out in favour of legalisation, however, and this makes his views (and, to a certain extent, the position of the executive branch charged with carrying out federal law) incoherent – by which I mean, his various positions taken together are inconsistent. Obama may well ‘evolve’ further as he did with gay marriage, but any such evolution will likely come too late in his term to lead to an effective, permanent change in policy. Continue reading