On Hobby Lobby: Where Ginsburg and Alito Go Astray

As a faithful Catholic with moral objections to forced Christian complicity in both abortion and contraception, I had many reasons to rejoice in the Supreme Court’s majority decision in Burwell vs. Hobby Lobby written by Justice Alito. Unfortunately, the Court’s reasoning was not one of them. Two premises in the majority’s argument were especially troubling: first, the Court’s assertion of the legal inscrutability of moral and religious beliefs, and second, its assumption of the Government’s claim that contraceptives and abortifacients are necessary for women’s health and well-being. Contrary to the first premise, I agree with dissenting Justice Ginsburg that we can judge such cases on their merits and that the Court’s justification for refusing to do so is both weak and dangerous. Against Ginsburg, however, I would argue that examination of the second premise reveals serious conceptual confusion about what constitutes medical care. Moreover, the fact that we can detect such confusion is evidence, contra the Court, that we can offer principled arguments for limited government that do not require liberal premises about the inscrutability of moral and religious beliefs.

Let’s begin with what we might call the Inscrutability Doctrine. The Court distinguishes between religious and secular grounds of argument, holding that religious but not secular arguments are legally inscrutable, or outside the ken of the Court (38). Indeed, the Court asserts that a major methodological mistake in the arguments of both HHS and Ginsburg is that they overstep this boundary, “in effect tell[ing] the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step” (38). No reason for this refusal is given. In practice, the consequence of the Inscrutability Doctrine is that “religious” plaintiffs are under no burden to offer evidence of the rationality of their beliefs, but only of the “sincerity” with which they are held, whatever that means—and that those who disagree with “religious” positions cannot offer evidence of the irrationality of such beliefs.

Now while few people would require believers to offer apodictic evidence that their positions are sound and thus compel assent on pain of irrationality, the Inscrutability Doctrine asserts that the faithful do not even need to offer relevant evidence that their positions are cogent and so minimally worthy of rational scrutiny. To see how extreme a position this is, consider merely that if the Doctrine is true, most of Justice Ginsburg’s dissent is an extended petito principii: she assumes that women’s obvious need for contraception is relevant contrary evidence to the plaintiff’s claims when no contrary evidence-giving is allowed.

Frustration with this implication largely explains what is at stake in the opening salvos of Ginsburg’s dissent. She provides evidence that the Court has historically rejected the Inscrutability Doctrine as the Court currently interprets it (Ginsburg, 21-2), and further argues that it allows no principled way to distinguish between competing “religious” rights claims in the future (32-3). How is the court to “divine” the difference between “religious” justifications of discrimination involving race, marital status or sexual orientation—about which it has previously ruled negatively—and positively judged cases involving contraception and abortifacients, such as this one? How can one in principle prevent extending legal inscrutability to cases involving “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)” (33-4)? One cannot: where no evidence is relevant, no distinction makes a difference.

 

Thus does Ginsburg reach her infamous “minefield” dilemma (35). On the one hand, she argues (contrary to finding of the Court), we could confine religious liberty exceptions to “religious” non-profit organizations, thereby excluding for-profit companies from asserting conscience rights on grounds of the free exercise of religion. This would have the happy consequence that the Court could avoid having to make arbitrary or contradictory rulings on matters of religious belief. On the other hand, we could reject the Inscrutability Doctrine as interpreted by the Court, but this would require the Court to admit, per its own assumed premises, that the serious needs of women for child-prevention trumps religious liberty in an employer-based health insurance system. As the Court asserted in United States vs. Lee, “some religious practices [must] yield to the common good” (qtd. by Ginsburg, fn. 25, p. 28).

This is a powerful, incisive dissent. Conflicts in a pluralistic society are inevitable. Unless there are principled ways of resolving these conflicts (such as the Court’s pre-Smith “balancing” doctrine), the only means of resolving disputes will involve sophistry and the will-to-power. That may very well win social conservatives a victory today, but will backfire when the balance of the Court shifts out of their favor.

Catholics, of course, believe the Inscrutability Doctrine is false when understood as a philosophical thesis because we believe in the complementarity of faith and reason—not that the Court has necessarily asserted so much. Rather, it has argued that it lacks the jurisdiction to adjudicate moral and “religious” disputes. This weaker “legal” or “methodological” version of inscrutability, i.e., the bracketing of moral and religious questions for purposes of law, has been part of the Liberal project since the Enlightenment. Stretching at least from Locke to Rawls, this tradition asserts that the purposes of government are to protect the material interests of citizens and those social freedoms necessary to pursue one’s conception of the good life. Since each autonomous agent has the power to define the good life for herself, governments must remain legally agnostic about whether the ends pursued by citizens are in fact good and limit themselves to the adjudication of conflicts arising from the means by which citizens choose to pursue competing ends.

As Kennedy defends the idea, “for those who choose” to be religious, “free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts” (Kennedy, 2). Those who choose otherwise must deal with the exercise of religion until their own interests and autonomy are affected. Another way to understand the force of Ginsburg’s dissent, then, is to see her as arguing that Liberal limited government is impracticable on the Court’s current interpretation of the Inscrutability Doctrine, since silencing the Court on issues involving moral conflict invoking practical affairs would make the Liberal project on which our country is founded impossible. The Inscrutability Doctrine is therefore untenable as a legal principle.

I too believe the doctrine is untenable, but I don’t believe this leads to either a naked public square or the necessary suppression of religious exercise when it conflicts with ‘secular’ interests, as Ginsburg does. The Inscrutability Doctrine is false because we can in fact evaluate the minimal rationality (cogency) of moral claims. However, as I’ll show below, this doesn’t entail what Ginsburg thinks it does in her “minefield” dilemma, for philosophical disambiguation of the meaning of “healthcare” allows us to grasp the second horn of the dilemma and render it invalid and unpersuasive. Moreover, a little clear thinking shows that citizens possess no duty to materially support, and perhaps a moral immunity from being compelled to materially support, the provision of contraception and abortion as part of women’s healthcare. To this argument we now turn.

No Justification for Public Support of Contraception
Both the Majority opinion as well as Justice Ginsburg agree that the provision of contraception and abortifacients “furthers a legitimate and compelling interest in the health of female employees” (Kennedy, 4). Ginsburg argues that child-prevention technologies are “needed to safeguard [women’s] health and well-being” (Ginsburg, 29), and that these needs are “concrete, specific, and demonstrated by a wealth of empirical evidence” (24).

Let’s consider that evidence. Ginsburg offers four arguments for the conclusion that women “need” child-preventing technologies, three of which are based on recommendations of the medical community. The first is that pregnancy is contraindicated (hazardous) for some women (Ginsburg, 5, 24). The second is that contraceptives are often used therapeutically, e.g., to treat menstrual disorders and pelvic pain (24). The third argument holds that contraception and abortifacients are necessary in order to avoid adverse mental states associated with unintended pregnancies (5). Finally, Ginsburg reiterates the finding of Planned Parenthood vs. Casey that contraception and abortion are necessary to ensure the full and equal participation of women “in the economic and social life of the Nation” (2).

All of these arguments can be seen to be unpersuasive without invoking inscrutable “religious” claims, sincere or otherwise.

The first argument holds that women for whom pregnancy would be hazardous need child-prevention technologies. Granting that some women have medical reasons to avoid pregnancy, it doesn’t follow that they need contraception and abortifacients to do so if there are other ways of achieving the same goal, just as I don’t need a jet to get to work if I can bike or drive the commute. Putting aside abstinence (which is 100% effective in avoiding pregnancy), several modern methods of Natural Family Planning are more effective than barrier methods of contraception and as effective as hormonal contraceptives, as many studies show.

Moreover, many forms of contraception and abortion are themselves hazardous to women’s health because they function by inhibiting ovulation, changing cervical mucus and tubal motility, and preventing the implantation of new life in the uterus by weakening the endometrium—in short, by frustrating the functioning of the female reproductive system. In light of this, I often do the following exercise with my students: try to define what makes something medicinal as opposed to poisonous or a mere enhancement. Antibiotics are medicinal because they treat pathologies. Breast implants are enhancements because they neither treat pathologies nor (usually) frustrate or destroy the natural functioning of bodily processes and organs, as poisons do. How then should we classify hormonal contraceptives and abortifacients? That’s right: as poisons. It seems obvious, then, that we shouldn’t include contraceptives and abortifacients in ‘medical’ care.

People resisting this point often respond that perhaps we should broaden our definition of health so as to include subjective life-preferences and lack of psychological disturbances: medicines (they argue) are whatever we find convenient for achieving these goals. That would indeed allow us to classify contraceptives and abortifacients as medicines, but doing so would also erase any distinction between enhancements and medicine (breast implants for the otherwise fit woman would count), and nothing would inherently be hazardous: if someone wants death, death-causing agents would count as medicinal for that person. In philosophical terms, this definition of health would be too broad because it excludes almost nothing. In some countries, according to the broad definition, female genital mutilation might in principle be medicinal. We use Pills.

Which brings us to the key argument: contraceptives and abortifacients are not medicinal, but poisons women ingest in order to achieve extra-medicinal ends (mostly) dictated by lifestyle choices, such as postponing children or remaining childless. These goals are not necessarily evil—circumstances ranging from poor health to a poor economy may “contraindicate” children for some couples—but there are cheaper, less harmful, and (to Catholics) more licit ways of accomplishing those goals than contraception and abortion. Assuming in agreement with the government that safeguarding women’s health is both for the common good and for the good of every individual woman, it is far from clear that providing women with contraception and abortifacients achieves health rather than a lifestyle choice, especially when that lifestyle choice is arguably hazardous rather than enhancing given the biologically destructive mechanisms by which contraceptives and abortifacients operate. Consider finally that Natural Family Planning is free or nearly free (it requires some education and a thermometer), and has no adverse side-effects. Given its effectiveness, that should make it a top candidate as a means of achieving the government’s compelling interests.

Nevertheless, one might still argue that women are in the best position to make the cost-benefit analysis balancing the damaging effects of contraception against their benefits. If we put aside the adverse side-effects of most forms of contraception, however, those benefits reduce to the claim that contraceptives and abortifacients are more convenient ways of achieving childlessness than natural family planning. But then it’s not clear why convenience is a “compelling government interest,” or a moral duty for those with moral objections to subsidize, when nearly free, effective, and safe alternatives are available. Similar reasoning would buy me a jet plane to get to work at the expense of my Green friends with moral objections to the contrary.

Contraceptives are not Therapeutic
Ginsburg’s remaining arguments can be dealt with quickly.

The second argument holds that contraceptives can be used therapeutically. This is a conceptual confusion. While it is true that hormonal contraceptives are often prescribed in response to pathologies, such as menstrual irregularity or pelvic pain, it is not the case that contraceptives are being used medicinally, because the contraceptive effect of these drugs is not the effective cause of curing an underlying pathology. They are not being used qua contraceptives, but qua medicines, which happen to involve contraceptive side-effects. To see the difference, ask yourself the following question: if it were the case that alternative, equally effective but non-contraceptive means of treating menstrual irregularity were available, the only purpose for continuing to prescribe contraceptives rather than these alternatives would not be medicinal but “enhancing”—for the purposes of contraception rather than therapy. In many cases, such alternatives do exist. Finish the modus ponens. Moreover, hormonal contraceptives often merely lessen the severity of, say, menstrual irregularity, without actually treating the underlying pathologies in the endocrine system causing the symptoms. Saying the Pill cures menstrual irregularity is like saying Sudafed cures colds.

Third, Ginsburg argues that contraceptives and abortifacients are necessary to help women avoid adverse mental states associated with unplanned pregnancies, such as depression and anxiety, and that children resulting from planned pregnancies do better on a broad spectrum of indicators of health and well-being. (For a review of the data, see this article in Atlantic Monthly.) This argument trades on an ambiguity. We can agree with these authors that reliable family planning is correlated with broad physiological and social benefits for women and children without assuming that all reliable family planning is either contraceptive or abortifacient. Again, natural family planning fits the bill, and should be preferred to contraceptives and abortifacients for the reasons stated above.

Finally, Ginsburg argues that women need child-preventive technologies in order to achieve full and equal participation in social and economic life. This too commits a conceptual confusion. If we assume that women qua women tend to bear children, then child-preventive technologies do not help women qua women. Rather, they make childlessness a assumed condition of full and equal participation in society: you can work or serve at the cost of your motherhood. That’s a pyrrhic victory, and an unnecessary one.

Societies that require women to be effectively childless or neutered as a condition of employment—that is, a society that privileges childless workers who can dedicate more of their time to economic productivity over working parents who balance the interests of employment and family life in favor of family life—is a society that has not achieved the full participation of women as women. Assuming that men also tend to raise children, such a society has not achieved the full participation of men either. In short, as Catholic Social Teaching has been arguing for decades, an anti-life, contraceptive society is an anti-family society that privileges capital over labor at the expense of families. We can do more to achieve the broad social benefits achieved by strong family life by passing pro-family workplace legislation than by convincing women they need to ingest hazardous substances in order to work more.

Allow me to summarize the complete argument. In Burwell vs. Hobby Lobby, the Supreme Court concluded that closely-held, for-profit companies do not have an obligation to subsidize abortifacient technologies for their female employees when they have religious objections against doing so. Key premises in the Court’s arguments included the assumption that moral and religious claims are inscrutable for purposes of law, and that the government has a compelling interest in providing women with contraceptive and abortifacient services. Both of these premises are false: the second premise is false on its merits, and this fact is evidence of the falsity of the first premise. Indeed, the reflections contained in this essay demonstrate that we can give cogent, principled arguments for the limited obligation of society to provide family planning services to women, and arguments against the obligation to provide women contraceptive and abortion services, without assuming the liberal anthropology behind the Inscrutability Doctrine. Thus the conclusion but not the reasoning of the Court should be affirmed.

Joshua Schulz

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Joshua Schulz teaches moral philosophy in the Catholic intellectual tradition at DeSales University in Center Valley, PA. He earned his doctorate in philosophy from Marquette University in 2010.

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