Yesterday, Austin pointed to two New York Times articles, one by Aaron and the other by Uwe Reinhardt, to suggest that the Supreme Court understands neither science nor economics. I’m sympathetic to the claim. There’s an air of unreality about a court decision that allows companies to claim a religious exemption to paying for “abortifacients,” when employees actually pay for that contraception (as Uwe notes) and the challenged forms of contraception don’t appear to cause abortions (as Aaron explains).
Still, I’m not sure the Court’s decision demonstrates its ignorance. I offer the following not in defense of Hobby Lobby, but by way of explanation. The Court had some lawyerly reasons to downplay both science and economics. You might not agree with those reasons, but they’re not insubstantial.
Science. The extent to which the contraception mandate infringes on Hobby Lobby’s religious liberty turns on a mixed question of science and religion. Scientists can demonstrate that the challenged forms of birth control almost never prevent implantation of a fertilized egg. But it’s very hard for scientists to prove that it can never happen.
That’s where religion comes in. Does facilitating the use of contraception that might conceivably prevent implantation, even if that risk is very low, contravene some religious precept? Science can’t answer that question. A religious person might think that it’s wrong—sinful—to commit an act that presents a risk, however remote, of something very bad. Should the courts be in the business of second-guessing those kinds of religious claims? Among other things, doing so raises the possibility that the courts would uphold mainstream religious values while dismissing religious views they thought were kooky.
It’s also relevant that the government didn’t dispute the sincerity of Hobby Lobby’s belief. To the contrary, it acknowledged that FDA’s own labels for the challenged forms of contraception said they might interfere with implantation. In our adversary system, the courts generally won’t adopt an argument that neither side actually makes.
Economics. The Court’s decision might reflect ignorance of the fact that employees ultimately bear the cost of their health benefits. But it might not. Whatever the underlying economic realities, Hobby Lobby is still cutting checks for health care. Plus, Hobby Lobby as an entity has to work with its third-party administrator to guarantee coverage for these forms of birth control. These are both affirmative acts, and Hobby Lobby objected to them both.
Are those acts too attenuated from the eventual decision to use one of the challenged forms of contraception to amount to a “significant burden” on Hobby Lobby’s exercise of religion? Justice Ginsburg thought so, and that strikes me as a reasonable view. (It seems relevant, too, that Hobby Lobby actually did cover the contraception in question to the ACA. It just wasn’t aware of it!)
But the Court said that it would defer to Hobby Lobby’s “honest conviction” that its participation—however attenuated—was “immoral.” Why? Because that conviction “implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” The Court didn’t get the economics wrong. It just didn’t want to disparage Hobby Lobby’s view about the wrongness of its modest participation.
On both points, the Supreme Court’s decision reflects a willingness to take very seriously Hobby Lobby’s asserted religious beliefs, even to the point of minimizing good science and sound economics. If you think that’s deplorable, I get it. But notice that the flip side is also true. Taking the science and economics seriously would have meant upholding the contraception mandate—which would have been seen, with some justice, as minimizing Hobby Lobby’s religious beliefs.
