The owners of Hobby Lobby claim to oppose not only the termination of pregnancy in the technical sense, but also anything that impedes implantation of a fertilized egg. (In the technical sense, prior to implantation no pregnancy has yet been established.)
Hobby Lobby's position on this issue appears to be rooted in a certain view about the fertilized egg: At the moment of fertilization, it becomes a person with a person's rights--including the right to life.
Now there's more to their argument than that--and that something more should make those with a vaguely libertarian bent rather uneasy. After all, what does a right to life consist in? If I will die unless you let me into your home, does my right to life entail that if you lock me out you have committed homicide? Hobby Lobby would presumably have to say something along these lines if they want to insist that there is something seriously wrong with preventing implantation--which is a fair bit like denying me access to your home when I need such access in order to survive.
But let's grant all of this. Let's assume that the fertilized egg has a person's right to life, and that a person's right to life isn't limited to a right not to be killed but also puts demands on others: If I have a right to life and I need to use your body in order to survive, then you have a duty to make sure that I can gain access to it--and if you take steps to block me from gaining access, that's seriously wrong.
Let's assume all of that is true. If we adopt such a perspective, what ought we to think about a practice which results predictably in the deaths of more than half of all fertilized eggs that are involved in the practice? If you know, when you engage in a practice, that there is a good chance that a person will die--let's say a 50-60% chance--would it be permissible for you to engage in the practice?
Let's suppose that you have a worthy goal: You want to become a parent. Imagine a dystopian world where the only legal way to become a parent is to put in a request with a breeding factory--one which is fully automated, using artificial wombs and robotic childbirth and infant nursing machines. If you put in a request, the breeding factory goes to work--gestating a baby until viability and then evaluating the newborn for a period of time (a few weeks, say).Then the facility either delivers the newborn to you--or anesthetizes the infant and dumps it into a midden where it dies quickly from suffocation. Sometimes this happens because the evaluation protocols have judged the baby insufficiently healthy. Sometimes it happens inexplicably--it's just something the breeding factory does.
In fact, let us suppose it does it 50-60% of the time. More often than not, when you put in a request for a baby, the machine produces a baby and then dumps the living three-week-old into a midden heap to die.
Would it be morally problematic for you to make use of such a breeding facility? Most of us, I think, would say yes. After all, babies have a significant moral standing and a robust right to life--and making use of this facility entails that, on average, for every two beings with such moral significance who come into the world, one of them is automatically tossed away and left to die.
If a fertilized egg, pre-implantation, has that kind of moral standing, then there's a significant problem. Because fertilized eggs only successfully implant 40-50% of the time. The rest of the time, they are washed out of the uterus and die. If we really want to give to fertilized eggs the kind of moral standing that we give to three-week-old babies, then don't we need to regard every case of a couple trying to conceive as having the same problematic moral status that we attach to the parents putting in a request with the breeding factory?
Now let's modify our dystopian scenario just a bit. Let us suppose that all human beings are sterilized at birth, but they are implanted with a device that detects if and when they are engaged in sexual activity. Instead of putting in a request for a baby, in this future world you just have to start being sexually active--and a request is sent automatically. The detection device is imperfect, so the request only goes once in awhile, and is more likely to go out during full moons. To be sure the message is sent, you need to have sex fairly consistently, especially around the time of the full moon.
Now compare two couples who are sexually active in this dystopian world. Bill and Mary want a baby and are urgently trying to get the message through to the factory--and hence engaged in a practice which has a 50-60% chance of throwing a baby onto the midden heap. Carl and Nancy, however, have found a way to disable the transmitter so that it doesn't put in any requests for babies. But suppose that the disabling technique is not quite perfect. There is a 0.5% chance, say, that a request will go out anyway after a year of being sexually active. And when that happens, something about the disabling technique increases the chances that the baby produced will be thrown on the midden heap. Let's say the chance is 90%. Still, since the chance of a request going out is only 0.5%, the chance that Carl and Nancy' activity will send a child to the midden heap is 0.45%.
So, Bill and Mary are engaged in an activity that has a 50-60% of resulting in a living baby being thrown onto a midden heap to die. Carl and Nancy are engaged in an activity that has a 0.45% of producing this result. Who is morally better? Which choice is more problematic, morally?
Numbers aren't everything, of course, so the morality of their respective choices may not be simply a matter of consulting the numbers here. And in this dystopian world, taking he risks that Bill and Mary take is the only way for new children to come into the world. But something should be pretty clear: It's not obvious that Bill and Mary are doing nothing wrong while Carl and Nancy are engaged in moral wrong-doing. There's at least some reason to think that Carl and Nancy's behavior is less troubling, morally.
But if a fertilized egg, prior to implantation, has the same moral status as a three-week-old newborn baby, the couple trying to have a baby is like Bill and Mary, while the couple using an IUD is like Carl and Nancy. That is, if we adopt a key assumption made by advocates for Hobby Lobby's position on contraception, the couple trying to have a baby is engaged in activity that is at best morally suspect--and arguably more wrong, morally, than the couple that uses the IUD. Their key premise about the moral status of the fertilized egg can hardly justify the position which they in fact seem to take--namely, one in which a couple trying to conceive is doing something lovely, while the couple using the IUD is engaged in a serious moral wrong.
Note that most of these problems go away if we think that baby-like moral standing emerges at some point after implantation--that is, at some point after a pregnancy has started in the technical sense.
All of this leads me to conclude that there is something seriously muddled about the Hobby Lobby position. Am I missing something?
Showing posts with label Hobby Lobby. Show all posts
Showing posts with label Hobby Lobby. Show all posts
Thursday, July 3, 2014
Hobby Lobby and Religious Conscience: Two Reasons to Doubt the Freedom of Religion Argument
There is much about the recent Hobby Lobby ruling that I'm not qualified to comment on, but I have some concerns about a key claim in this case--namely, that the business owners' freedom of religious conscience offers grounds for justifying the Supreme Court's decision. There are two problems, in my view--although my thinking on both is still evolving. The first strikes me as less serious than the second.
1. Religious conscience needs to be responsive to matters of fact.
Suppose Pastor Bob refuses to officiate at the wedding of Pat and Alex on the grounds that he is religiously opposed to same sex marriage. If, as a matter of fact, Pat and Alex are a heterosexual couple, then no court of law would treat his religious opposition to same-sex marriage as a legitimate basis for refusing to marry them. And if Bob sputters that it is a matter of religious conviction that this man and woman are in fact both men--well, I doubt that will fly if the facts don't line up with the conviction.
In other words, there is the moral premise of Bob's argument--which is derived from his religious convictions. And then there is the factual one--which isn't a matter of religious belief and shouldn't be.
In the Hobby Lobby case, there is the the moral premise: The rather complex conviction that a form of contraception which operates by preventing the implantation of a fertilized egg is wrong because fertilized eggs are persons who are thereby being deprived of their lives. And then there's the factual claim that the four forms of contraception at issue function in this way.
But it does not appear that, as a matter of fact, the four forms of contraception operate in this way. Three (the two "morning after" pills and the hormone-releasing IUD) operate primarily to prevent fertilization, while the fourth (the copper IUD) kills sperm cells. With respect to the two "morning after pills," extensive research indicates that these do not prevent implantation in the cases where they fail in their primary function.
It may be true, however, that when the IUD's fail in their primary function and conception happens anyway, the fertilized egg is considerably less likely to implant than it would be in the absence of the contraceptive. Absent any contraceptive, on average only 40% of fertilized eggs implant. IUD's may lower this percentage considerably.
But in that case, the effect on implantation appears to be a side-effect of the contraceptive's use. Given the standard 40% success rate for implantation, someone who is trying to get pregnant is a greater threat to the lives of fertilized eggs than an IUD-user--since it is likely that the IUD-user will never flush out a fertilized egg because the IUD will prevent the egg from being fertilized in the first place. But I doubt Hobby Lobby is going to start condemning couples attempting to conceive of slaughtering innocent babies wholesale. After all, the deaths of more than half of the zygotes they produce is a side-effect of the effort to become pregnant, not the aim of it.
The moral status of a medicine's side-effects is different from the moral status of its primary intended effect. Hobby Lobby could argue that any medication which substantially increases the probability that fertilized eggs won't implant even as a side effect of its use violates their religious conscience. But if their religious faith entails commitment to this broader ethical principle, consistency would call for more sweeping employer involvement in regulating the health-care options covered by a health plan. For all we know, numerous medications prescribed for a range of purposes have an impact on implantation chances. (At least the IUD makes it unlikely that this side-effect will ever happen, since it is highly effective at preventing the conditions under which such a side-effect will arise.)
So: If Hobby Lobby isn't interested in sweeping involvement in health-care choices, then it doesn't seem as if they really are, as a matter of religious conscience, committed to this broader ethical principle after all. And if what they're committed to is the narrower one, their religious conscience at best calls for condemning those who use IUD's in part to achieve what is ordinarily a side-effect (as in when someone takes a medicine with psychotropic side-effects for the sake of those side-effects). If their religious conscience really does push them towards the broader principle, then the substance of their religious conscience calls for a level of intrusion into health care options that is far more burdensome on the insured than what the Supreme Court was considering--leading to a different set of worries about the ruling.
Of course, all of this is premised on the facts about the four contraceptives being as described above--and while I am relying on what I've read about them, I'm not an expert. So this line of concern hinges on what the facts are--but that's part of my point here. This can't and shouldn't be seen as merely a matter of religious conscience. If the facts don't fall in the right way, the principles derived from religious conscience don't apply. And there is reason to think this is the case here.
There is, however, a deeper concern about the relevance of religious conscience that I think may be more decisive.
2. A health care plan is a form of compensation that gives employees a means of paying for their health care--and in this way is like a paycheck.
Here's the concern in a nutshell: Hobby Lobby sees its religious conscience as compromised when it's required to offer a health care plan that can be used to pay for certain types of contraceptives. But the paycheck that Hobby Lobby pays out to each of its employees can be used to pay for those same types of contraceptives. If the latter doesn't compromise Hobby Lobby's religious conscience, why should the former?
A health insurance policy is sometimes viewed as a product--but no one wants a health insurance policy for its own sake. They want it for the sake of paying for the healthcare products and services they many need. Hence, it is more natural to see a healthcare policy as a way to pay for a certain class of products. Insofar as it is the latter, offering a healthcare policy that covers the normal range of healthcare products is like offering a salary in a form that can be used to buy the normal range of things money can buy.
When Hobby Lobby pays its employees, they are providing them with the means to buy porn. They are providing them with the means to visit Nevada prostitutes. Money, in our society, has by social agreement been invested with a very broad purchasing power. A normal healthcare policy, by contrast, can be used to buy far fewer of the things that offend the values of Hobby Lobby's owners. That's true even if the policy covers morning after pills and IUD's.
Does the fact that our monetary system empowers money-possessors to buy porn entail that Hobby Lobby's conscience should be opposed to paying its employees with money? I suspect Hobby Lobby would say no. They could explain that the decision about what to do with the money Hobby Lobby gives them lies with the employee, not with Hobby Lobby--and if the employee decides to use it on porn, that's not Hobby Lobby's fault, even if Hobby Lobby provided the money that was used for this purpose. So Hobby Lobby hasn't done anything wrong. The company hasn't been forced to violate its corporate conscience.
That, of course, is exactly what Hobby Lobby should say about the money they give to their employees. But if so, why shouldn't they say exactly the same thing about the health insurance policies they give to their employees?
Unless a sufficiently potent distinction can be made here, it becomes hard to justify the claim that Hobby Lobby's religious conscience is being violated by offering a broad health insurance policy covering the usual range of health care products and services. If their conscience is being violated, then they should be complaining about the violation of religious conscience that comes from offering a paycheck in a form that can be used to buy the usual range of things (including porn and divorce lawyers and emergency contraceptives) that our society makes available for purchase.
And if this isn't about religious conscience, it becomes instead about the desire to use their position as the provider of health insurance to constrain employee choices. Instead of this being about Hobby Lobby's desires to follow its religious values, it becomes about Hobby Lobby's desire to use its position to impose its religious values on others--to make their employees act according to the values of Hobby Lobby's owners, by controlling what the compensation provided to employees can be used to do.
And if this sort of control is deemed acceptable, what follows? Will it become legitimate for employers to pay their employees with cash cards that can only be used to purchase employer-approved goods and services?
In the end, the Hobby Lobby case is about the clash between the liberty of businesses and that of individual employees. When companies do whatever they please, their choices can sometimes restrict the options and freedoms of those who work for them. In a world where workers largely depend on business owners for their livelihoods, workers are susceptible to exploitation and undue control when owner decisions about how to run their business are unregulated. Business owners should have considerable freedom to decide how their businesses are to be run, of course. But if the exercise of the power they have as owners is wholly unregulated, it is individuals who pay the price--in terms of fewer choices and opportunities.
The Hobby Lobby decision strikes me as ultimately being about this balance between the liberty and welfare of business owners on the one hand and workers on the other. And the Supreme Court decided in favor of business owners in a way that, as I see it, sets a very disturbing precedent.
1. Religious conscience needs to be responsive to matters of fact.
Suppose Pastor Bob refuses to officiate at the wedding of Pat and Alex on the grounds that he is religiously opposed to same sex marriage. If, as a matter of fact, Pat and Alex are a heterosexual couple, then no court of law would treat his religious opposition to same-sex marriage as a legitimate basis for refusing to marry them. And if Bob sputters that it is a matter of religious conviction that this man and woman are in fact both men--well, I doubt that will fly if the facts don't line up with the conviction.
In other words, there is the moral premise of Bob's argument--which is derived from his religious convictions. And then there is the factual one--which isn't a matter of religious belief and shouldn't be.
In the Hobby Lobby case, there is the the moral premise: The rather complex conviction that a form of contraception which operates by preventing the implantation of a fertilized egg is wrong because fertilized eggs are persons who are thereby being deprived of their lives. And then there's the factual claim that the four forms of contraception at issue function in this way.
But it does not appear that, as a matter of fact, the four forms of contraception operate in this way. Three (the two "morning after" pills and the hormone-releasing IUD) operate primarily to prevent fertilization, while the fourth (the copper IUD) kills sperm cells. With respect to the two "morning after pills," extensive research indicates that these do not prevent implantation in the cases where they fail in their primary function.
It may be true, however, that when the IUD's fail in their primary function and conception happens anyway, the fertilized egg is considerably less likely to implant than it would be in the absence of the contraceptive. Absent any contraceptive, on average only 40% of fertilized eggs implant. IUD's may lower this percentage considerably.
But in that case, the effect on implantation appears to be a side-effect of the contraceptive's use. Given the standard 40% success rate for implantation, someone who is trying to get pregnant is a greater threat to the lives of fertilized eggs than an IUD-user--since it is likely that the IUD-user will never flush out a fertilized egg because the IUD will prevent the egg from being fertilized in the first place. But I doubt Hobby Lobby is going to start condemning couples attempting to conceive of slaughtering innocent babies wholesale. After all, the deaths of more than half of the zygotes they produce is a side-effect of the effort to become pregnant, not the aim of it.
The moral status of a medicine's side-effects is different from the moral status of its primary intended effect. Hobby Lobby could argue that any medication which substantially increases the probability that fertilized eggs won't implant even as a side effect of its use violates their religious conscience. But if their religious faith entails commitment to this broader ethical principle, consistency would call for more sweeping employer involvement in regulating the health-care options covered by a health plan. For all we know, numerous medications prescribed for a range of purposes have an impact on implantation chances. (At least the IUD makes it unlikely that this side-effect will ever happen, since it is highly effective at preventing the conditions under which such a side-effect will arise.)
So: If Hobby Lobby isn't interested in sweeping involvement in health-care choices, then it doesn't seem as if they really are, as a matter of religious conscience, committed to this broader ethical principle after all. And if what they're committed to is the narrower one, their religious conscience at best calls for condemning those who use IUD's in part to achieve what is ordinarily a side-effect (as in when someone takes a medicine with psychotropic side-effects for the sake of those side-effects). If their religious conscience really does push them towards the broader principle, then the substance of their religious conscience calls for a level of intrusion into health care options that is far more burdensome on the insured than what the Supreme Court was considering--leading to a different set of worries about the ruling.
Of course, all of this is premised on the facts about the four contraceptives being as described above--and while I am relying on what I've read about them, I'm not an expert. So this line of concern hinges on what the facts are--but that's part of my point here. This can't and shouldn't be seen as merely a matter of religious conscience. If the facts don't fall in the right way, the principles derived from religious conscience don't apply. And there is reason to think this is the case here.
There is, however, a deeper concern about the relevance of religious conscience that I think may be more decisive.
2. A health care plan is a form of compensation that gives employees a means of paying for their health care--and in this way is like a paycheck.
Here's the concern in a nutshell: Hobby Lobby sees its religious conscience as compromised when it's required to offer a health care plan that can be used to pay for certain types of contraceptives. But the paycheck that Hobby Lobby pays out to each of its employees can be used to pay for those same types of contraceptives. If the latter doesn't compromise Hobby Lobby's religious conscience, why should the former?
A health insurance policy is sometimes viewed as a product--but no one wants a health insurance policy for its own sake. They want it for the sake of paying for the healthcare products and services they many need. Hence, it is more natural to see a healthcare policy as a way to pay for a certain class of products. Insofar as it is the latter, offering a healthcare policy that covers the normal range of healthcare products is like offering a salary in a form that can be used to buy the normal range of things money can buy.
When Hobby Lobby pays its employees, they are providing them with the means to buy porn. They are providing them with the means to visit Nevada prostitutes. Money, in our society, has by social agreement been invested with a very broad purchasing power. A normal healthcare policy, by contrast, can be used to buy far fewer of the things that offend the values of Hobby Lobby's owners. That's true even if the policy covers morning after pills and IUD's.
Does the fact that our monetary system empowers money-possessors to buy porn entail that Hobby Lobby's conscience should be opposed to paying its employees with money? I suspect Hobby Lobby would say no. They could explain that the decision about what to do with the money Hobby Lobby gives them lies with the employee, not with Hobby Lobby--and if the employee decides to use it on porn, that's not Hobby Lobby's fault, even if Hobby Lobby provided the money that was used for this purpose. So Hobby Lobby hasn't done anything wrong. The company hasn't been forced to violate its corporate conscience.
That, of course, is exactly what Hobby Lobby should say about the money they give to their employees. But if so, why shouldn't they say exactly the same thing about the health insurance policies they give to their employees?
Unless a sufficiently potent distinction can be made here, it becomes hard to justify the claim that Hobby Lobby's religious conscience is being violated by offering a broad health insurance policy covering the usual range of health care products and services. If their conscience is being violated, then they should be complaining about the violation of religious conscience that comes from offering a paycheck in a form that can be used to buy the usual range of things (including porn and divorce lawyers and emergency contraceptives) that our society makes available for purchase.
And if this isn't about religious conscience, it becomes instead about the desire to use their position as the provider of health insurance to constrain employee choices. Instead of this being about Hobby Lobby's desires to follow its religious values, it becomes about Hobby Lobby's desire to use its position to impose its religious values on others--to make their employees act according to the values of Hobby Lobby's owners, by controlling what the compensation provided to employees can be used to do.
And if this sort of control is deemed acceptable, what follows? Will it become legitimate for employers to pay their employees with cash cards that can only be used to purchase employer-approved goods and services?
In the end, the Hobby Lobby case is about the clash between the liberty of businesses and that of individual employees. When companies do whatever they please, their choices can sometimes restrict the options and freedoms of those who work for them. In a world where workers largely depend on business owners for their livelihoods, workers are susceptible to exploitation and undue control when owner decisions about how to run their business are unregulated. Business owners should have considerable freedom to decide how their businesses are to be run, of course. But if the exercise of the power they have as owners is wholly unregulated, it is individuals who pay the price--in terms of fewer choices and opportunities.
The Hobby Lobby decision strikes me as ultimately being about this balance between the liberty and welfare of business owners on the one hand and workers on the other. And the Supreme Court decided in favor of business owners in a way that, as I see it, sets a very disturbing precedent.
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