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.