Musing About the Hobby Lobby Decision

I am in the camp that applauds this week’s Supreme Court decision in the Hobby Lobby case.  But of course others disagree, and I was not surprised to see that there is alarm on the pages of the New England Journal of Medicine.   A “Perspectives” article written by two attorneys (one with a bioethics degree) and one M.D. includes two graphs, in particular, that I think are key.

The first:

[I]n the wake of Hobby Lobby, we may anticipate challenges to other medical services that some religions find objectionable, such as vaccinations, infertility treatments, blood transfusions, certain psychiatric treatments, and even hospice care. Hobby Lobby‘s implications may also extend into civil rights law, with employers asking to “opt out” of laws intended to protect people from employment and housing discrimination based on religion, race, sex, national origin, or pregnancy status. Although the majority deemed these slippery-slope concerns unrealistic, the dissent expressed serious concerns.

So the slippery slope is a fallacy, except when it isn’t.  This paragraph sounds like Justice Ginsberg’s dissent, which commentators much more qualified than I have found over the top.  But grant that this decision may not—and I guess I should say, probably will not—stop with this case.  How plausible is the list above?

  • Vaccinations?  I think that a challenge would fail because the government’s interest is too compelling—although as I understand it the Court majority did not invoke this line of reasoning in Hobby Lobby. Parents already “opt out” of vaccinations for their kids—a poor decision, in my view.  And maybe a separate government initiative to insure that vaccinations are paid for would be a good idea.  I don’t think this one is a likely problem.
  • Infertility treatments?  Legitimate point.  I might see religious objections to providing insurance that pays for IVF—and I believe such an objection should be honored.
  • Blood transfusions?  I wouldn’t rule out a challenge, but I doubt it would succeed.  Too interwoven in too much of medicine and surgery, and too compelling an interest to allow an opt out under the Religious Freedom Restoration Act (RFRA).  (I suppose if we had single payer, that would be an alternative for the government…)
  • “Certain” psychiatric treatments?  I guess I’m not sure what is meant here.  Perhaps some reader can fill in the blanks.  On the other hand, the government might try to block insurers from providing access to “certain” counseling treatments deemed illegitimate by them but allowed by some religious groups.  I suppose.
  • Hospice care?  No way.  Unless a secular business owner wanted to prefer coverage of physician-assisted suicide/physician-aid-in-dying.  I’d expect religiously devout people to want to protect hospice care out of concern for human dignity.  Perhaps a Christian Scientist would object under the umbrella of not wanting to provide access to medical care—but couldn’t such a person decline to insure employees at all and choose to deal with the consequences under the provisions of the ACA?  Or wouldn’t we expect a broad challenge on religious grounds to fail, again because the government’s interest is too compelling?
  • “Opt outs” that are really forms of civil discrimination?  I thought that was specifically excluded under RFRA.

The second key graph:

Though the decision applies only to closely held, for-profit corporations, it sets a precedent for religious exemptions that could have sweeping implications — and reflects the Supreme Court’s great potential impact on U.S. health care. Yet the Court was applying Congress’s statute, and Congress could, if it chose, scale back the protection offered to religious objectors — a good reason to share public reactions to the decision with our elected representatives.

This sounds like a fair point and fair warning.  The struggle for religious freedom continues.

I can’t resist adding that, if people could freely buy their own individual insurance, and not have to depend on employers providing it, maybe the range of choice could be more easily accommodated.  Our employers don’t tell us what our auto insurance options are.  They may offer life and disability insurance, but we can buy more, or different, coverage.

As a long-winded pastor used to say, “This and I’m through”—Justice Alito’s discussion of what it means to incorporate pointed out, if I am getting it right, that forming a corporation is one way for human beings to associate to achieve ends that are not limited to profit.  That, of course, is the hard thing for medical-related enterprises to keep in focus and put into practice.  But it is clearly true.  As organizations get bigger and more far-flung, however, the interests of the human beings become less commensurate, and we slip into money being the sole reason for existence.  But it is not.  Most of the people who work for a drug company, for example, may not be bound to the Hippocratic Oath, but the company works, as it were, under a “Hippocratic umbrella” where the needs of the patient, or patients—and I would distinguish this from the population—dictate the rewards for all other actors in the system.

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