Wednesday, July 23, 2014

Hobby Lobby Post-Mortem Part 10: When Is There Complicity?

by Sherry F. Colb

In my Verdict column for this week, I discuss and analyze an underdeveloped dimension of the Supreme Court's ruling in Burwell v. Hobby Lobby.  The Court held in Hobby Lobby that the Religious Freedom Restoration Act ("RFRA") protects closely held corporations with religious objections to health insurance coverage requirements under regulations passed pursuant to the Patient Protection and Affordable Care Act ("ACA").  The requirements at issue in Hobby Lobby require employers that provide health insurance coverage to their employees to include within that package coverage for two kinds of intra-uterine device and two types of morning-after pill that the corporations consider religiously objectionable abortifacients.  

The Supreme Court accepts the respondents' claim that they believe that life begins at conception.  This claim, coupled with an acknowledgment from the U.S. Department of Health and Human Services ("HHS") that the challenged methods of contraception sometimes operate after fertilization has occurred, lead the Court to conclude that these contraception methods can operate as abortifacients.  

In my column, I suggest that whether a method of contraception is or is not an abortifacient is in part a matter of semantics (revolving around whether one defines "abortion" to presuppose embryonic implantation in the uterus), rather than being a purely factual or moral question, and in part a matter of whether refusing to admit an embryo into one's uterus is truly tantamount to killing the embryo, given the well-accepted distinction between "killing" and "letting die."  I argue that even if one believes that life begins at conception and that killing an embryo pre-implantation is murder, it does not necessarily follow that taking a drug that makes the uterus inhospitable to embryonic implantation qualifies as murder.

In this post, I want to return to a moral question that the Supreme Court does address in its analysis and apply it to a distinct issue that arose in a conversation with my daughter.  The moral question is whether paying for insurance coverage for a contraception method that one considers an abortifacient implicates the payor in the killing of zygotes or embryos that occurs when one's employee uses the coverage to purchase and utilize the particular contraceptive. The Supreme Court's view is that if a litigant asserts a sincere religious belief that paying for such coverage implicates the payor in the religiously impermissible killing, then the courts must -- under RFRA -- accept that the payor is indeed so implicated.  In response to this conclusion, some have argued that if the payor is implicated in this case, then it ought to follow logically that people who object to a government spending program  on religious grounds (such as spending for drone strikes) also have the right under RFRA to withhold a portion of her income taxes that will be used to finance the objectionable program.  The Court replied to this argument that taxes are different (and could not, as a practical matter, be subject to such exemptions), although it is not obvious to me and others that this distinction between health insurance coverage and taxes has any substance.

This set of arguments came to mind when my daughter asked me a question.  She told me that she had given money to a homeless person earlier in the day.  After doing so, however, she began wondering whether he might use that money to purchase an animal-based food, such as a salad made of chicken's eggs or a cheese made of slaughtered baby calves' mothers' milk.  If he did that, she asked, would she then be responsible for the violence consequently inflicted on animals?  I immediately thought of Hobby Lobby and told her about the respondents' claim in that case.

If we assume that (a) a human embryo is morally equivalent to a newborn baby and that (b) an IUD or morning-after pill operates sometimes by killing a human embryo, then it follows that using the IUD or morning after pill is sometimes tantamount to murder. But does providing insurance to the the user of the contraceptive method, thus enabling her to purchase and use the method, implicate the employer who provides the insurance in the murder? If so, is an ethical vegan who gives money to a homeless person who uses that money to contribute to violence against animals (by purchasing animal flesh and/or secretions) similarly implicated in violence against animals?

The question is a difficult one.  Plainly, the religious claimants in Hobby Lobby would prefer that no one use IUDs or morning after pills, because they would prefer that no one commit what they believe is the murder of innocent people, whether or not they are morally implicated in that murder.  Likewise, ethical vegans like my daughter who posed the question (and myself, my husband, my other daughter, and several million other people in the United States alone) are disturbed by anyone's consuming the flesh and secretions of animals, because we want animals to be free of such violence, regardless of whether or not we are individually implicated in it.  It is therefore fair to say, I think, that my daughter was hoping that the man to whom she gave money would buy something wholesome that did not contribute to violence against animals, and it is similarly fair to say that the religious claimants in Hobby Lobby hope that no one uses IUDs or the morning-after pill. 

The question of moral complicity can be complicated because if one is committed to refusing to participate in unjust behavior, one is probably also committed to doing what one can legally, ethically, and realistically do to prevent others from engaging in unjust behavior as well.  It is not enough for me, for example, to refuse to purchase the products of animal torture and slaughter (dairy, eggs, and flesh); I hope to educate others about how they can make different choices and thus end their own contribution to unspeakable suffering and death.  My focus is accordingly not always on whether another's action morally "implicates" me or whether I am instead going beyond my own personal obligation to refrain from violence by reaching out to another person in an effort to inspire non-violence toward animals in her as well.  This blurry line between avoiding one's own complicity in wrongdoing and encouraging others to avoid wrongdoing as well is important, because it could help explain why -- if complicity is the predicate for legally protected conscientious objection -- people morally opposed to an action would be motivated to broadly construe the scope of impermissible complicity.

In my book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans, I have a chapter called "Mind If Order the Cheeseburger?" in which I discuss the moral dilemma that can arise when a non-vegan dines with a vegan at a restaurant and the former asks the latter whether she "minds" if the non-vegan orders animal-based food.  Confronting this question is difficult for many vegans, because we do feel that saying "Sure, go ahead" makes us complicit in the choice, while saying "Yes, I mind" might seem rude to the non-vegan diner.  I suspect that the claimants in Hobby Lobby would feel similarly uncomfortable if asked "Do you mind if I use the morning-after pill?" and would probably either say "yes" or feel morally obligated to say yes, even if they ultimately kept quiet out of social inhibition (assuming that anyone would ever be in a position to pose this question in the first place).

People who subscribe to a set of moral beliefs, whether technically "religious" or not, then, have two arguably separate objectives:  to conform their own conduct to their values, and to help inspire and motivate others to do the same. Understood in this way, an employer who believes that using an IUD or the morning-after pill is morally equivalent to murder could understandably want to prevent his employees from using these birth control methods.  One way to do so would be to provide insurance coverage that excludes IUDs and the morning-after pill from coverage. Another way might be to require employees to commit in writing to never using their wages to purchase either of these forms of contraception.  But in an interconnected world, it is difficult to imagine a set of circumstances in which an employer could fully and effectively prevent money that was once his money from being used to engage in conduct that he regards as immoral.

Our interconnectedness has many benefits, of course.  But one of the downsides is that it may be impossible to completely escape all complicity in conduct that we regard as wrongful while simultaneously participating in the marketplace.  I suggested to my daughter that I do not think that she is responsible for the non-vegan purchases that the recipient of her money decides to make.  (The alternative would be a mandate to never give poor people money directly.).  It seems to me, however, that providing employees with insurance coverage that includes IUDs and the morning-after pill is at least as attenutated a way of "supporting" the use of these methods as is a donation to a pan-handler a way of supporting his consumption of animal products.  

Attenuation of complicity is inherently a spectrum rather than an on/off proposition, but it may be useful for those attempting to deny insurance coverage to their employees to remember that many of us are routinely confronted with activities that we consider wrongful and unjust and about which we can do nothing.  To the extent that the Supreme Court just gave a limited class of corporate owners the right under RFRA to refuse to face this reality, perhaps because of the (five male Catholics on the) Court's own sympathy for the "life begins at conception" idea, it is doing more than simply respecting the religious exercise of some.  As someone who is among those who strongly object to the use of animals in the making of medicines, as Justice Ginsburg (sort of) references in her dissenting opinion, I hope that the Court will not dismiss my concerns if I am ever similarly situated.  I suspect, however, that the Court will do exactly that, as it implies it might do here, when confronted with Justice Ginsburg's slippery slope argument:

[O]ur decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Though I would not favor the further theocraticization of the workplace, I do find it curious how ready the Court is to distinguish religious objections that the Justices share from those that are foreign to them.  It seems that things are always "different" when your values are not the ones being violated.


Unknown said...

I was under the impression the tax differentiation was due to the fact no less restrictive way of advancing the government's compelling interest of financing the government exists, compared to the insurance coverage which presented a ready-made alternative in the form of extending the religious affiliated non-profit accommodation to for-profit operations.

As far as "Mind if I order the cheeseburger"-like questions go, I might reply with, "Of course I mind. Had You just ordered it, I wouldn't have said anything but asking Me sends the message You want Me to okay Your contribution to what I consider to be an inherent evil. Why would You do such a thing?" I have found People quickly stop asking Me such questions, keeping out of such situations while preserving relationships and opportunities to persuade.

James said...
This comment has been removed by the author.
James said...

My prior comment (which I could not get the little trash can button to remove) was not particularly clear. The question is the extent to which the moral stance of non-complicity is given legal protection under RFRA: for all purposes that RFRA considers "religious," or only when the complicity involves reproductive choice?
I would guess that we all want other people to act as we would prefer (aka "if I ruled the world"), but it seems to be a hallmark of individual autonomy that each of us gets to make our own choice, within the bounds of the constraints the law imposes on our own individual choices. Hobby Lobby - although of course it involved "only" funding of such choices -- goes against that principle. There is nothing in the Hobby Lobby complicity rationale that seems to protect employers from, e.g., requiring pledges that employees will not use their pay to purchase items the employer disapproves of.

t jones said...

James raises a question asked several times in the comments to the HL post mortems, but not yet addressed by the Dorf on Law contributors: under the Hobby Lobby majority's logic, what's the difference between paying an employee's insurance premiums or paying the employee's wages, so long as either could be used to fund a form of contraception objectionable to the employer?

Joe said...

To remind, the case here also is a tax case. The employer gets tax benefits for providing health insurance though like other such benefits there are strings on what you have to include.

The personal example is a bit amusing. I worry about homeless people using money for beer or something. Not veal.

Anyway, there are lines of complicity though it's tricky at times to determine such things. This comes up in various debates and some people tediously have a baby/bathwater philosophy about certain things.

When pressed, if you are able via online debates etc. (rarely possible -- it's like trying to get a reasonable argument on a talk show) to get to the core of the issue, some sort of lines are drawn. If not, you get this:

Which is both amusing and a bit too close to home to what is going on here. Thus, James' questions start to sound pretty reasonable. The line of letting people in for-profits where by law a range of people are employed (e.g., nondiscrimination laws require it) use their own compensation seems sensible.

One more thing regarding your column. A big thing here is that "ABORTION" (caps intentional) is seen as a powerful word, so once that is tossed out, special rules apparently should apply. See, e.g., non-payment of Medicaid benefits even if the abortion is for a serious medical problem.

I'm not a fan of that policy but if you are going to force it to apply to fertilized eggs ... or the chance of a fertilized egg being present ... you are going to go off the rails.

Line drawing is not always philosophically neat, though I appreciate Colb, Dorf et. al. to debate things, but there is some room for fairly clean lines. Even Colb in her book, e.g., focused on dairy and egg products, even if eating shrimp and dare I say worms would not be vegan, e.g.

And, that from a vegan trying to write a philosophical account. The mess public policy comes out to be using the Hobby Lobby approach continues to concern me.

Joseph Simmons said...

Complicity is an interesting issue and I appreciate your thoughtful post. I don't think it's a difficult issue in the Hobby Lobby case (self-insured entity; a mandate to provide payment for specific service contrary to religious belief), but in other contexts I think it can be (eg whether baking a cake makes one complicit in facilitating a marriage).

As Unknown says, the use of tax monies poses a very different problem when it relates to whether there is a less restrictive means of advancing a government's compelling interest (which is given broad deference).

If the government passed a law requiring you to buy vouchers for your employees for the purchase of meat (whether or not they use them is a different matter), I do think that should run afoul of the Constitution, if not the RFRA. That is substantively different than giving your employees a salary they may buy meat with. You appear to believe it is not substantively different. And of course, there should be different factors involved when it is the government compelling you to do something as opposed to private worries of complicity via voluntary activity.

As the federal government seeks to compel private actors to do ever more things simply because they exist, I would hope there would be some legal force to protect the exercise of conscience and religion. It won't always be feasible, as excluding medicines developed from the use of animals would pose a great burden with no obvious less restrictive means of administration.

ann mosley said...

It seems like this whole big talk about contraception and abortion will never end. It’s especially annoying when these colleagues or even a chief who strongly disagree with your position and initiate these talks on daily basis. I’ve changed a couple of companies just because I want to freely express my opinion. Luckily after using a helpful service I managed to find a place satisfying my demands (you can this link to learn more). But still I would like not being told what to think or say. We are free to do anything unless it hurts people around us.

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