Hobby Lobbying: How Corporations Got Consciences

Early 20th century postcard of Mt. Carmel Hospital in Columbus, Ohio.

The Green family who initiated the Hobby Lobby case may be evangelical Christians, but Hobby Lobby is very much a product of the Catholic Church’s long standing efforts to create conscience exemptions from the provision of reproductive health care.

The road to Hobby Lobby began in 1972, when the ACLU filed suit against St. Vincent’s Hospital, a Catholic hospital in Billings, Montana, for refusing to allow a 32-year-old woman named Gloria Jean Taylor to receive a tubal ligation because of the Catholic prohibition against sterilization. The ACLU argued that the hospital was required to provide sterilization, which Taylor needed for medical reasons, since it was the only obstetrics facility in the area and accepted funding under the federal Hill-Burton Act, which provided money for hospitals to expand and modernize in return for a promise to serve the local community.

A district court ruled in Taylor’s favor, saying the hospital’s religious-based restriction “raises serious constitutional questions.” When the ACLU won a similar suit against a Catholic hospital that hadn’t accepted federal funding but was the only medical facility in a large region, which lawyers argued made it a “quasi-public” institution, it created a statewide outcry. One bishop threatened to close the maternity departments of all the Catholic hospitals in the state rather than allow sterilizations. With one-third of all babies born in Montana delivered in Catholic hospitals, it wasn’t an idle threat. The Montana Hospital Association warned of dire consequences if Catholic hospitals closed their maternity wards.

Not only were Catholic hospitals important providers, but many were respected community institutions, still run by the same orders of pioneering nurse-nuns who had come to the Pacific Northwest to provide care to miners, railroad workers and ranchers on the ragged edge of the frontier with little respect to their religion or even their ability to pay. Even some non-Catholics voiced fears that rights of their local hospitals were being violated. “I am not a Catholic, but I think people of all faiths should see this as a threat to our religious freedom,” one woman wrote to the Billings Gazette.

And there was a potentially more explosive issue hovering in the background—abortion, which several states had already legalized. “At some point in the not too distant future, the American Civil Liberties Union, or some other individual or organization, is going to challenge a Catholic hospital when it refuses to let its facilities be used by a woman who wants an abortion,” warned an editorial in the Helena Independent Record.

“There are definite civil principles being formed,” noted Bishop Schuster. A little more than a month later, the Supreme Court legalized abortion in Roe v. Wade. What had been an outcry turned into an uproar. At a heated press conference, Spokane Bishop Bernard Topel threatened to close every Catholic hospital in his diocese and go to jail rather than allow a single one to perform an abortion.

The brouhaha caught the attention of Idaho Senator Frank Church, a leading liberal and one of the earliest opponents of the Vietnam War. But he came from a conservative Catholic family and was outraged by the idea that the Catholic hospitals of the Pacific Northwest might be forced to perform abortions. “How could anyone suggest such a thing?” he once demanded.

When a package of public health bills, including the Hill-Burton Act, came up for reauthorization in March, Church warned Congress that it needed to act “or we are going to leave this to many different courts to decide.” He proposed an amendment that would prohibit the federal government from tying any public health funding to the requirement than an individual or hospital perform an abortion or sterilization contrary to their religious beliefs. “[I]t should be evident that a provision needs to be written into the law to fortify freedom of religion as it related to the implementation of any and all Federal programs affecting medicine and medical care,” he said.

The Church Amendment went well beyond the traditional understanding of conscience exemptions, which historically had been granted to prevent an individual from being compelled to perform an act that went against his or her conscience. Fueled by pressure from the Catholic bishops and the Catholic Hospital Association and protectiveness toward valued community institutions, as well as a sense by many in Congress that it needed to reassert its authority on the issue of abortion, the amendment sailed though the Senate 92-1, with little debate over the implications of granting a “conscience” to an institution.

Only Senator Jacob Javits, who was a constitutional lawyer, questioned whether an institution can “have a religious scruple without violating the establishment clause of the constitution,” and whether it was “equal protection of the laws” to provide federal aid to an institution “which proscribes or prohibits … a perfectly lawful hospital function.”

Nonetheless, the House passed the amendment and it became law in June of 1973. A 1975 article in the William & Mary Law Review concluded that while the amendment’s protection of an individual’s right not to perform abortion or sterilization was constitutionally valid:

No court has decided clearly the issue of whether an institution possesses the same right to free exercise of religion as is clearly possessed by an individual. Indeed, it is hard to conceive of an institution or organization per se possessing any kind of beliefs or putting them into practice. … As the issue of the existence of a corporate “conscience” has never been litigated, let alone settled, the constitutional status of the protection afforded to institutions by [the Church Amendment] remains uncertain.

The Supreme Court declined to hear a challenge to the amendment the following year. Once hospitals had in effect been granted a conscience, the concept of nonprofit corporations with moral compasses was expanded over the years, often at the behest of Catholic providers, to encompass religiously affiliated HMOs and health insurers, who were exempted from various laws regarding abortion and contraception. From there, it was plausible, if not constitutional in the eyes of many, to claim that a for-profit entity like Hobby Lobby has a “conscience.”

Patricia Miller is the author of Good Catholics: The Battle over Abortion in the Catholic Church. Her work on the intersection of sex, religion, and politics has appeared in The Nation, Ms., and Huffington Post. She was the editor of Conscience magazine and the editor-in-chief of the National Journal’s health care briefings.

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  • NavyBlues05

    They’ve just deprived all of the women in their employee who may require a hormonal or copper IUD to address serious medical issues. I had to get one and was forced to pay full price for it…Medicare and VA refused to assist me. At the age of 50, I’m no longer dangerously anemic from lengthy heavy cycles, no longer needing heavily sedating pain killers for severe cramping, and I’m able to deal with a chronic neurological disorder with some degree of dignity.

  • joeyj1220

    Hobby Lobby is hardly “standing to its will”. They invest in companies that make abortifacients, In addition, the majority of their products are made in China by workers forced to have abortions.

  • fiona64

    Yep … “standing to its will” while investing in products they suddenly do not want covered by the insurance policy that previously did so … I mean, before a black man was in the White House and all.

  • Paul Frantizek

    The decision was too narrow for my tastes but anything that protects the right to religious expression beyond simple ‘freedom to worship’ is alright by me.

    And acting as if investing in a mutual fund which invests some portion of its holdings in corporations which manufacture contraceptives/abortifacients is disingenuous. It’s like arguing that investing in a mutual fund which holds defense stocks ought to oblige one to support war or capital punishment.

  • Rmj

    Actually it’s a question of how tenuous the relationship between the owner of the money and the money has to be before it is not longer a moral issue.

    An employer provides insurance as an employment benefit, which means it is no different than the agreed upon salary the employee accepts to do the job. By offering insurance, the employer agrees to pay for that insurance as a part of the employee’s compensation.

    The government says that insurance policy cannot be worthless, that it must make certain basic provisions. It does not dictate the size of the deductible, but does dictate what will be covered so all have basic medical care available to them.

    Now comes Hobby Lobby, which objects that the insurance policy it buys means the insurance company must provide coverage for contraceptive care to the insured. The money leaves Hobby Lobby, goes to the insurance company, and MAY be used to buy contraceptives, and Hobby Lobby says that’s a violation of its religious feelings.

    Okay, the money leaves the employers hands and goes directly to the employee, who uses it to buy alcohol, which may also be a violation of the employer’s religious feelings. In that case, we tell the employer: tough. It’s no longer your money.

    Why is it still the employer’s money when it gets to the insurance company?

    Is it still my money if my taxes go to support war, and I’m a religious pacifist who doesn’t want to support war in any fashion? Why, or why not?

    Is my religious expression only protected if I can use it to prevent you from obtaining something you are otherwise entitled to? Curious definition of “religious expression” indeed.

  • Lamont Cranston

    So you don’t particularly care if Hobby Lobby makes a bunch of money from children being aborted? My, how righteous you are. Righteousness like that ought to get you into heaven really soon. Congratulations!

  • Jim ‘Prup’ Benton

    There is yet another serious problem with Hobby Lobby. By accepting the right of religious based exemptions based on the idea that these contraceptives are abortifacients — even though the decision rightly states that they are no such thing — are they not arguing that religious objections to state actions must be given credence even if the objections are demonstrably false?
    Given that, how can laws prohibiting the teaching of creationism still stand?

  • Christopher

    I believe that abortion as a contraceptive method is very close to murder. But I 100% support the right of any woman that supports abortion as a contraceptive method for unwanted pregnancies to kill their own unborn. I hope all such women use contraceptives and if they fail they should have an abortion. It is called natural selection and those kind of people will go extinct. And that, to me, is a good thing. It is just natural law and the consequences of not having children or following the laws of God.

  • Christopher

    NO. Those women can still pay for it themselves or get additional insurance themselves. They were no more deprived of it than I am deprived of the right to keep and bear arms because YOU will not buy me the gun I want.

    When I wanted a gun to protect myself I was FORCED to pay full price for it. Did that deprive me of my RIGHT to own the gun I wanted? RIDICULOUS!

    When I had cramping so bad that I could not stand the pain I diagnosed myself and cured myself naturally. I didn’t demand the government or a business pay for a cent of MY problem.

  • Christopher

    The RFRA was declared unconstitutional concerning STATE actions 17 years ago. It only applies to the Federal government since 1997 AD,

    The RFRA does not force a person’s belief on the government. It keeps the FEDERAL government from forcing you to do things that you believe are morally wrong. Do you think the government should have that right?

    Anyone that sends their child to a government school should be arrested for child endangerment.

  • Christopher

    If the government did not believe that Hobby Lobby’s beliefs were sincere then they should have bought that argument before the Court.

    The government did just that in an RFRA case concerning importation of Leopard skins by a guy claiming to be a member of some African tribal religion but the government offered evidence that he was really a Catholic and they guy was convicted because he was really a Catholic.