William M. Briggs

Statistician to the Stars!

The HHS Mandate & Hobby Lobby: Updated

“Do it my way!”

I’m a little late with this; pressures of work. Nevertheless, it’s Hobby Lobby appreciation day. Open letter from CEO.

One day the department of Health and Human Services sat in a room and decided, quite arbitrarily, to force employers pay for their employees’ birth prevention and abortion devices and medication (but only for abortions up to a specified time limit; at least for now). Those employers refusing to comply will be punished such that they must pay enormous amounts of money each day they refuse the government’s dictate. The penalties are of such size as to either force the employers to comply, or to drive them out of business.

The HHS sought no outside counsel when creating its “mandate.” HHS formed its conditions from whole cloth. The size of the penalties were decided apparently by random number generator. Nobody voted for any of this; nobody called for it; it dropped upon us suddenly. The citizenry had no say.

Now read these words:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

These are relevant because many people believe as a matter of fundamental religious importance and practice that no birth prevention, and certainly, absolutely, positively no abortions (at any point after conception) are allowable. And they will be damned if they have to provide these for themselves or for another. These facts are known by every rational American, thus they were probably available to the HHS.

The mandate violates the Constitution, if the mandate is considered a law. Presumably, HHS reasoned that it itself was not Congress, and that its mandate was not a law, therefore they could impose it.

Strangely, once the mandate was announced, there was a sizable portion of Americans who were not incensed at the audacity of the State’s overreach. They said, “Let the employers pay! They have the money. Nothing is more important to a woman’s ‘health’ than to be given ‘free’ birth prevention and abortion devices and medication. Employees have no responsibility to pay for their own such medications, for they are employees.” These people, however misguided, should be excused. After all, they are caught in the modern mania which assumes the State must provide on demand manna from heaven.

An employee is a person who voluntarily and of his own free will agrees to perform a function for an employer for a mutually agreed upon consideration. Neither party is forced to enter into the agreement. Let’s repeat that, because those who want to punish employers for having more money than themselves cannot hold this thought: Neither party is forced to enter into the agreement. It is a free choice.

Now the State, presuming its citizenry unable to think for themselves, has stepped in and added layers of regulation to this voluntary relationship. The State supplies employers with checklists and says, “You may not discriminate on these items when hiring employees.” These lists grow exponentially. The State has also partly removed employer-employee negotiation and told employers what consideration is allowable. There are many other facets of the employer-employee relationship that the State oversees. The State in rare instances also regulates employees (say, to meet a minimum age requirement), but on the whole the State meddles more with the employer than with the employee.

The State now says, in the form of the HHS mandate, that employers must give, without asking anything in return, its employees money for abortions etc. even though this violates the consciences of the employers. Besides the State being all-powerful (and disliking any religion which does not have it at its center), and thus considering its size reason enough for its mandates to be obeyed, it also cites “health” as being important—but only employees’ health; the health of employers is of no interest to the State. This is nonsense.

There is no more crucial aspect to health than food. A woman employee—poor thing!—can live without an abortion, but she will not last a week without food. A male employee, the brute, can survive without a condom, but will die forthwith without food. Food as a health mediator trumps aspirin, antibiotics, surgery, and every other medical intervention.

If the State is as interested in the health of employees as it claims, then why haven’t they mandated that employers distribute “free” food to their employees? Why does the State say employees must pay for their own food? The answer is simple: the State doesn’t give a damn about employee health, but the State does care deeply about preventing conceptions and for aborting those children that manage to slip through the birth prevention devices.

Accept for the sake of argument that killing children in the womb is a good and necessary thing, and that the State is right to fear the consequences of pregnancies. Imagine, even, that birth prevention and abortion are more important to health than food. Why must employers pay for their employees’ care in these matters? Because they are employers? That is a non sequitur, as must be obvious even to Katherine Sebelius. Because the State has created previous mandates for employers and this is just one more? If you accept that (many do) then it follows the State is without limitation, that its powers are endless, that the State is Big Brother incarnate.

No: you still have to justify, on grounds other than “The State said so”, this new mandate. You have to show why it is okay to violate the free practice of religion in this case. You have to prove that asking employees to spend their own money for their own private activities justifies taking money out of somebody else’s pocket, simply because that somebody else has the money. Of course, nobody can justify this—except to revert to the now ubiquitous “argument” I want it!

Enter Hobby Lobby, whose stores and website openly promote Christian values. It would be a relatively thick-headed job candidate who would not have a base awareness of the principles supported by their potential employer. It is the right of the owners to have and display these principles, and to tell their employees about them. After all, it is the free choice of employees to work there. Not one employee of Hobby Lobby is forced to work there. How many are forced to work there? Right: none. How many know of its Christian principles? Right: all.

Hobby Lobby will not pay for its employees’ birth prevention and abortion devices and medications because doing so would violate, in the strongest sense, the fundamental religious beliefs of the founder and CEO. Hobby Lobby appealed to the Supreme Court on this point and was told by Justice Sotomayor (in effect) “Tough.” J. Sotomayor might have used as guidance a ruling from a lower court, which said:

Plaintiffs [Hobby Lobby] have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion.

The State’s escape clause is Hobby Lobby, even though privately owned, is a corporation, and corporations as such might not have religious freedom. They are incorporate enough to pay taxes and be subject to regulation, though, and be comprised of and by private individuals all espousing, or not objecting to, the same religious belief, even to the point of writing that belief into the structure of the corporation. Remember it was the State which set up the fiction of corporations, so that individuals could operate businesses in accordance with the State’s regulation. And even if, as it likely, the State ultimately decides corporations have no religious rights, that still leaves individuals who own businesses which are not corporations; i.e. people operating as sole owners. The State has, with this ruling, tacitly admitted these people do have a right to practice their religion, and must not be subject to the mandate.

Hobby Lobby is family owned and controlled; its corporate members all share the same belief. Whatever legal fiction may be invoked, common sense proves this company is a collection of private individuals practicing their religious faith. Practice it they will: they have refused to become secularized and to take part in the abortion of children. Word is Hobby Lobby, by not complying, will be billed fines “of up to $1.3 million per day”. If so, at the end of January, they’d have to pay Katherine Sebelius 40 million dollars.

This would bankrupt the company, and perhaps force its closure. Many thousands of employee would be out on the street, without enough money even to pay for their own sexual aides, let alone their food. This will be hailed a victory by the abortion “rights” supporters, who must have the entire world converted to their religion.

Update See the response given by TJ in the comments, and also my reply. This is extremely important, because TJ’s argument is very common. I show that it is circular and partly a non sequitur.

31 Comments

  1. Well said!

  2. I am repeatedly and consistently astounded by the willful ignorance of the pro choice crowd. To deny that a fetus is anything but a human being and to belittle and disparage those that see this truth as self evident and then to raise up a ‘choice’ as more important than a human life confounds me to no end. Happy New Year!

  3. I read this in the light of your support for Romney and my head spins. If you believe the state is overstepping its boundaries, why the support for a statist? Why not support for Ron Paul or other true less-statist candidates?

  4. Whether you like it or not, Obamacare is government mandated universal health care, in cases where it is not provided by the employer it will be bought from the “insurance pool”.

    The health plans provided are required to cover certain minimum health requirements, among these birth control and abortion.

    If the employer did not provide insurance, the employee would be mandated to buy insurance from the insurance pool, and the plan provided by the employer must cover at least as well as the one provided by the insurance pool.

    In this framework, the employer can not decide that there are some medical care they wish to include and some they do not, because their plan does not cover at least as well as the one offered by the insurance pool.

    The only option for the employer is not to offer any insurance, and pay a fee for that. (A fee which is a reasonable and sometimes cheaper alternative to paying for health care coverage)

    Under the affordable care act, an employer refusing specific coverage on religious reason, leading to sub-par coverage for the employee, is in effect denying the religious freedom of its employees to not oppose birth control contra the employees’ possibilities in the insurance pool.

    As such there is no jurisprudence for allowing the employer to do this.

    If there was no affordable care act, the discussion would be different.

  5. “Plaintiffs [Hobby Lobby] have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion.”

    A wonderful example of mistaking reality with fantasy just to defend a stupid law.

    No one is arguing that non-human “corporations” have religious freedoms. It has always been about the employers as human beings. Are these people really in our highest courts? I’m afraid what terrors await us.

  6. Pregnancy is now a disease, like obesity. Preventing or ending pregnancy is therefore health care.

  7. Sander van der Wal

    30 December 2012 at 1:40 pm

    Tell the employees to form a corporation and contract that corporation to perform the work the employees as private persons did. Problem solved.

  8. Briggs

    30 December 2012 at 7:34 pm

    TJ,

    Thank you. Your response is important, because it is one commonly given. It is partly a non sequitur and partly circular in that it presupposes the question at hand. It is also partly an almost positive response.

    Why should employers pay for birth prevention etc. because they are employers, and why should employees not pay for their own? You say it is because employers should pay for employees’ birth prevention, etc. That is the circular part. Adding the words “Obamacare is the law” and “employees have to buy insurance” is a non sequitur because Obamacare does not contain the words “employers should pay for employees’ birth prevention, etc.” This was the interpretation given to the law by the HHS. It is the validity of that interpretation which we are discussing.

    You do attempt an answer which is not circular or a non sequitur. This is when you say that requiring employees to spend their own money on abortions etc. “is in effect denying the religious freedom of its employees to not oppose birth control contra the employees’ possibilities in the insurance pool” and that because of this, employers should thus violate their own religious beliefs. My dear, this does just not follow, even if it were true that denying coverage violated a religious belief (there are still religions that practice the sacrifice of children? here through abortions?). Because then you would have to prove why employees’ religious beliefs trump or outweigh the religious beliefs of employers, which follows from your argument. They obviously do not: they are equal.

    Adding that the insurance an employee receives from a Christian, Muslim, or (orthodox) Jewish employer would be “sub par” is also circular: it again presupposes that employee abortifacients etc. should be the responsibility of employers. And that is the question we are debating.

    You forgot to answer the food argument.

    There is one area in which we agree: If there was no affordable care act, the discussion would be different.

  9. Briggs

    30 December 2012 at 7:40 pm

    Jim,

    My support for Romney was purely pragmatical. Do you recall when I said, “Vote for Romney and slow the increase of government?”

  10. Ye Olde Statistician

    30 December 2012 at 9:16 pm

    Employees have a right to free speech. Must employers provide them with a platform, podium, and microphone?

    And since when is pregnancy a disease or injury?

    You may as well mandate employer payments for gym or health club memberships. At least those would have a definable relationship to “health.”

  11. Your example regarding food was excellent. It really shows that the HHS mandate doesn’t have a leg to stand on. Great reductio. I really don’t think that legislation is going to last much longer.

    But disparaging regulation that prevents discrimination in the hiring process or that holds employers to standards doesn’t get us anywhere. As past Popes have argued, capitalism without regulation ends in slavery. The more power you give employers over their employees, the more that power will be abused. Certainly, this regulation (age requirements, minimum wage, etc.) has driven jobs to countries like China, where no such regulations exist. That doesn’t make it wrong, though. Those same Popes I mentioned insisted that the only just wage was one big enough that someone could use it to take care of their family. What’s happening in countries like China is a travesty and, for those in charge, a grave sin against justice.

  12. There always seem to be comparisons between the U.S.A. and Canada when it comes to health care. There are actually 10 different sets of health care in Canada because it is provincially administered, however NONE of them provide contraceptives and drugs are generally subject to private insurance up to a certain limit. For example, I pay about $60.00 per month for “free health care” by payroll deduction in addition to the huge slice of my federal, provincial and regional taxes (yes, there is a hospital tax on my residential property tax bill). The government only takes on my drug costs when they exceed $800 per annum. The HHS has expanded its mandate to the absurd if Canada was to be any kind of example.

  13. William, slightly OT, but Obamacare has other unconstitutional provisions, such as excluding Amish on religious grounds. Religious discrimination – you bet it is.

  14. “You have to show why it is okay to violate the free practice of religion in this case.”

    The State is ordered around the principles of humanism which is to say that it is non-religious (i.e. atheistic). In other words, the State does not ‘naturally’ consider religion; not unless it is forced to – and it has to, it HAS to, oppose the very existence of religion, which is opposite to its own driving principles.

    Essentially, socialism is State-control via regulations (and laws). Communism is State-control via ownership. In both cases, police officers and also officers of the law are the enforcers of the will of the State.

    This is a practical fact: America is a socialist State. (This is were your argument starts to unwind.)

    This is why the State of America is, in practice, ignoring the constitution (which is not applicable under any system of State-control) and acting as per the humanist principles which under-gird it.

    I, for one, am really tired of the kind of argument you raise here. It is based on a misconception that is obvious, is blatant, and when empirically compared to the real world, is shown to exist in the realms of fantasy.

  15. Food stamps, et al. Paid for via taxation. Already covered elsewhere, hence no need to include it under HHS.

  16. In my experience, people believe in the separation of church and state right up to when the state compels the church, then the separation disappears.

  17. Briggs

    31 December 2012 at 8:36 am

    cb,

    Wrong about food stamps. These are only available to the “poor” and are not required of employers.

    You may be tired of the argument, but you have offered no refutation other than to say the USA is a socialist state. Even if this were so, it is not a proof that employers should pay for employees’ birth prevention etc. because they are employers.

  18. The employers will get out of this ethical bind as US healthcare model evolves into a single-payer system. As as result all kinds of “treatments” that are external to actual “care” will be covered for everybody. The only ones left to wrestle with moral dilemmas will be religious organizations who provide health services, but not to worry, such institutions already are closing at a record rate. In short order, they will be extinct, and we can move ahead shoulder to shoulder to greet the Brave New World.

  19. Ah, religion rears its ugly head again.
    Taken to it’s extreme,no healthcare should be provided, death & morbidity is but God’s will/punishment!

  20. Briggs

    31 December 2012 at 7:03 pm

    Adam Gallon,

    Your non-argument insinuation fails on at least three counts: (1) if it were not for religion, particularly Christianity, there would be no health care, free hospitals, and the like, as we know them; (2) birth prevention and abortions are not “health” “care”; and (3) you have not even attempted to say employers should pay because they are employers.

  21. I think this rule was done as an intentional attack on Christians. Sebelius is an ex-communicated Catholic who no doubt harbors animus towards the Church.

    It also turned out (ironically) to be an effective political play. By objecting to it, Republicans were successfully (!!) painted as being anti-women. Millions of gullible folks bought this absurd argument.

    It is pretty likely that this regulation will be struck down. But it will have served its purpose of unifying millions of (clueless) women to vote for the Democrats, and causing a lot of grief to the religious.

  22. “An employee is a person who voluntarily and of his own free will agrees to perform a function for an employer for a mutually agreed upon consideration.”

    In such a case, why should the employer provide safety equipment for the employee? Surely this can be included in the mutually agreed upon consideration? This is different? Certainly – but only in degree, yes? In this case (safety), the employer has a responsibility to not only provide safety equipment, but also to pay compensation for any injury sustained, right? Therefore, if employers are required to pay (via health insurance) for care required because of pregnancy (and they are), then why not ask them to pay for the prevention of same, as in safety/injury?

    (Not that I seriously propose this as valid – but I do propose that this is logic being applied)

  23. Briggs

    5 January 2013 at 6:37 pm

    Kneel,

    Good handle of the arguments used by those rejecting religious freedom.

    Safety equipment must be provided by the employers, says the government. Does that safety equipment apply outside the workplace, into the bedrooms of the employees? Surely not.

    And incidentally: some jobs are inherently more dangerous than others, by orders of magnitude of riskiness. Yet employees, even without Big Brother to stick up for them, still knowingly—I say knowingly—accept these risks.

    It is true that governments sometimes say to employer, “You must pay for your employees’ pregnancy costs, because you are an employer, and employees shouldn’t have to pay these costs, because they are employees, because employees don’t have as much money.” Well, that fallacious argument can, as I said in the post above, be used to justify any cost the government deems necessary.

    And we’re still waiting to hear why the government shouldn’t mandate employers pay for toilet paper, which is more important than condoms for health. And food, etc.

    Where does it stop?

  24. The only way to resolve the problem of religious freedom and separation of church and state is to get the government out of everything possible. A government that coins money, regulates interstate commerce and maintains a military will not interfere in most cases with religious beliefs (except for a military draft maybe). The conflicts will be greatly lessened.

    Schools that the government pays for, government regulations on food, health, etc are all going to clash with religious freedom. The constitution seems to have been based on the idea that America was not a nanny state. IF we want to become a nanny state, or a socialist state or a communist state, we would have to repeal the amendments to the constitution or invalidate the whole document and start over. Or pretend like the constitution does not exist in ALL cases, not just those one group wants. We can do that–though I think the government staying out of religious areas and granting exceptions is a better idea. Rewriting our form of government seems quite radical to solve a dispute over who pays for women’s contraceptives.

  25. Sylvain Allard

    6 January 2013 at 1:04 am

    Mr Briggs,

    I find it amazing how some you can twist an argument to fit your ideology.

    It seems that the anti-abortion croud understand very little about how the pill work and what it does.

    The oestrogene pill that women takes to prevent pregnancy doesn’t destroyed any ovula and doesn’t «kill» or abort at conception. What it really does is to prevent the ovaries from releasing the monthly ovula or ovulation by maintaining the level of oestrogene in the body the same throughout the month. The pill is also used to prevent ovarian deceases, which can degenerate into cancer, or ablation of the uterus or ovaries, which I gues is a real abortion since it destroy the eggs and prevent any futher pregnancy.

    The pill, and even the day after pill are not abortion and don’t cause abortion. They act to prevent the conception.

    So when Hobby Lobby say that they don’t want their health insurance to cover the pill they use the false argument that they cause abortion which is not the case.

    In the link you provided they also used the false argument that they are not expensive to buy. The price range for hormonal therapy is between $9 and $99/month. Also if the treatment is cheap, it also mean that the if the health insurance cover the pills the sum paid by the employer to cover the pill won’t be much different.

    Like men have has much respect for women than for a fly on the wall. I mean it never happens that a man will have sex with a woman without her consent. Or no man ever try to talk a woman in not using a comdon. Also no man refuses to care for an unwanted child.

    Until the first law signed by Obama came into office it was legal for a company to discrimanate against women based on their gender. Still in 2012, women earns 30% less than male without considering the benefit which include insurance coverage. BTW, before Obama care, being a woman was considered a pre-existing condition which caused higher insurance cost.

    Finally, people have the choice to go work somewhere or not. Not really, most people work where they are able to get hired, not where they want to work. This is even more true in the USA where the safety is non-existant by Canadian or European standard.

  26. Dear Mlle. Allard. Thank you for your reasoned, brilliant comments to Mr. Brigg’s updated column. We here in the backward colonies are forever thankful for not only deigning to notice and correct our bumbling, illogical opinions, but in taking it even further and favoring us with such vital accurate “truth” as has been promulgated by our “betters”. Your clarifications place us in your debt.

  27. Sander van der Wal

    6 January 2013 at 4:48 am

    In The Netherlands there are a couple of Calvinists who believe that all illnesses are Gods punishments. They do not let their children be inocculated against common children’s diseases like measles, some of which can be fatal.

    The question is, should people who believe that all diseases are God’s punishments, or even just God’s will, be allowed not to pay for their employee’s healthcare? The argument here being that a situation that is against somebody’s religion is sufficient reason to not force somebody to pay.

  28. Briggs

    6 January 2013 at 5:42 am

    Sylvain,

    You managed to avoid answering the questions. Why should employers pay for this and not for (say) good and toilet paper? Why shouldn’t employees use their own money? Why in this case?

    Have another go.

  29. Sylvain: What you are describing are women who are utterly powerless against men, yet think a man (Obama) should protect them. Isn’t that just saying the same thing as you objected to in the first place? Women can’t say no to sex, can’t refuse to have sex without a condom and have no idea that sex leads to babies since if they made this connections, they could choose not to have sex and thus, no baby. This is about women having sex without consequence just as they see men as doing. It flies in the face of biology. Women can never have sex without consequences as they see men doing, short of the woman being sterilized, and even then, occasionally they get pregnant.

    We can try all we want to rewrite biology, but nature does not care. Women will never be the same as men no matter how much we try to claim this.

    Sander: If the person who believes that all diseases are God’s punishments NEVER use the health care system, then they should not have to pay. However, if they expect to be taken to an emergency room after a car accident, then yes, they should pay. Perhaps a policy that covers only emergencies and not routine care.

  30. Sylvain Allard

    6 January 2013 at 8:59 pm

    Mr Briggs,

    Jehovah witnesses are against blood and plasma transfusion because it desecrates their body.

    Following your reasoning, an employer, who happens to be a Jehovah witness, should be able to decide that the insurance provided to his employee by his company should not pay for any blood related treatment required by its employees regardless of their religion or beliefs?

    You say that employer should be able to have insurance that would not cover something that they do not agree with because of their religious beliefs.

    You (or at least Hobby Lobby) believe that the pill is causing the abortion the fetus. Science says that they do not cause abortion. The proof is that if a pregnant woman was to take those pills while pregnant it would not cause an abortion. Your faith says life begins at conceptions (or should I say fecundation), yet science says that conception happens within the first two weeks, and that fecundation is not enough to cause pregnancy.

    Should your faith trump science and let you or employer falsely discriminate against woman?

    If Christian/Catholic faith is against the pill, then why 98% of women who says they share those belief will take the pill at some point in there life?

  31. Sylvain Allard

    6 January 2013 at 9:24 pm

    Sheri,

    Yes there are women who have sex for pleasure and no they don’t have to have unnecessary consequences for it. Though women will sometimes enjoy sex, they all, or almost all, face times where they are forced into sex, and that include their husband. At some point the law even concluded that by saying yes to marriage, a woman couldn’t say no to sex, even when couples were separated. The law as finally caught up with reality and know a husband can be brought to justice for rape (at least in the US, not yet in Canada).

    Yes, there are things that men can do and that women can’t but these things are mostly trivial (except for birth). A plentitude of job first occupied by man are successfully filled by women: firefighter, policeman, race car drivers, soldier, fighter pilot, etc.

    Women are not there to serve man like some people on this site seems to think.

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