The Symbolic Value of the Hobby Lobby Case
Libertarian Julian Sanchez says he has “no sympathy whatever with the substantive moral views of Hobby Lobby’s owners.” And that makes his insights even more trenchant.
Sanchez first quotes Justice Alito (see decision, p.4):
The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
In light of this, the outraged reaction to the ruling ought to seem a bit puzzling. If what you are fundamentally concerned about is whether women have access to no-copay contraception, then there’s no obvious reason to invest such deep significance in the precise accounting details of the mechanism by which it is provided. You might even be heartened by a ruling that so centrally turns on the premise that accommodation for religious objectors is required when no women will lack such coverage who would have enjoyed it under a mandate.
The outrage does make sense, of course, if what one fundamentally cares about—or at least, additionally cares about—is the symbolic speech act embedded in the compulsion itself. In other words, if the purpose of the mandate is not merely to achieve a certain practical result, but to declare the qualms of believers with religious objections so utterly underserving of respect that they may be forced to act against their convictions regardless of whether this makes any real difference to the outcome. And something like that does indeed seem to be lurking just beneath—if not at—the surface of many reactions. The ruling seems to provoke anger, not because it will result in women having to pay more for birth control (as it won’t), but at least in part because it fails to send the appropriate cultural signal. Or, at any rate, because it allows religious employers to continue sending the wrong cultural signal—disapproval of certain forms of contraception—when sending that signal does not impede the achievement of the government’s ends in any way.
HT: Alan Jacobs (who points out that most people probably don’t understand that Hobby Lobby is not keeping female employees from having the four forms of birth control they believe to be abortifacients; they are only refusing to pay for it.)