Abstract
Chapter 5 analyzes the discourse of the pro-life movement surrounding the Hobby Lobby ruling, focusing particularly on the increase in the use of freedom of religion arguments. The ruling has been framed as a victory to the freedom of individuals against government intervention, promoting libertarian values and legislation. The focus of the pro-life movement on religious liberty expands the topics that are at the center of the pro-life mission, while broadening its base of support to people who are concerned about freedom from governmental control more generally. This framing also promotes the concept of human rights as negative rights, while also challenging the separation between abortion and contraception.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
For example, similar arguments that classify religious liberty as a private matter appear in the right-wing arguments against same-sex marriage, discussed further in Chap. 6.
- 2.
While some activists focused on religious freedom, others continued to argue for the fetus-centered and women-centered arguments, using signs such as “Life Counts” and “Pro-Life is Pro-Woman.”
- 3.
While the argument about the link between the individual and the business is central to the discourse, the legal aspect of this link is more complex; “Perhaps the most significant problem with this ‘look to the people behind the corporation’ argument is that it is in some tension with corporate law. One of the purposes of the formal, separate entity in corporate law is precisely to permit courts to disregard those human beings behind the corporate form” (Piety 2015: 113).
- 4.
The HHS justifies the employer mandate—the inclusion of all FDA-approved forms of a birth control in the list of basic, preventive services required at no cost—as an attempt to ensure equality for women, through prohibiting the exclusion of these services by employers and insurance plans. Further, the requirement to cover these preventive services is designed to keep costs low as well as promote general health and well-being (HHS Website 2013).
- 5.
Another issue that is raised by some authors but not fully developed here is the argument that complicity-based claims are not well developed or explained, thus making it difficult to distinguish between legitimate and illegitimate arguments on this issue (Sepinwall 2015).
- 6.
Stolzenberg argues that positive concept of money is linked with positive concepts of rights. In this case, however, the positive concept of money is accompanied by a negative concept of rights, framing liberty as the freedom from, and the responsibility of the government to protect—rather than provide—this freedom (2014).
- 7.
In general, slogans emphasizing religious liberty received more attention in the media, and seemed to appear more often in demonstrations.
- 8.
While the focus of the pro-life movement on religious freedom—of employers as well as anyone else—may lead to limiting access of women to contraception and abortion, this outcome is not an explicit part of the discourse, and may be framed as an unintended result of a situation in which many people exercise their freedom of religion, thus making access to these services more difficult.
- 9.
At the same time, Ginsburg argues that the majority ruling “elides entirely the distinction between the sincerity of a challenger’s religious belief and the substantiality of the burden placed on the challenger” (573 U.S. ___, at 22).
- 10.
Despite this framing of the issue, there have been some attempts of legislators to limit the ability of women to use certain contraceptives. For example, a number of states restrict minors from accessing contraception without parental notification or consent (26 states and the District of Columbia) (Guttmacher 2015a). Further, personhood bills and initiatives were considered in seven states, measures that would recognize zygotes (a fertilized ovum, which is not yet an embryo) as legal persons. This recognition would prohibit IUDs and most hormonal forms of birth control, in effect criminalizing some of the most common and effective forms of birth control used by women in the USA today (Guttmacher 2015b). These cases of course do not correspond with this claim, a tension that can be explained as between the more libertarian argument of limited regulations and free market, and the conservative aim to limit the use of abortifacients and to require certain moral behavior from employees.
- 11.
- 12.
Another example of the expansion of the concept of religious liberty, including the acts that are considered to violate this freedom, is the dozens of lawsuits against the accommodation form for exempt religious organizations. The plaintiffs in these cases oppose the requirement to notify the government of that their employers are not covered for contraceptive services, this in order to initiate the process in which they get covered by the federal government. The claim that this notification is already a violation of religious liberty introduces a broad definition of this right, since any type of action that may result on coverage of contraceptives is “complicity-based sin.”
- 13.
S. 1204 was introduced in the 113th session by Senator Tom Coburn, although the Susan B. Anthony List’s Website lists Senator Deb Fischer—with Representative Diane Black—as leaders on this bill. Fischer is listed as one of 21 cosponsors on the bill (S. 1204, 2014).
- 14.
A challenge to this claim has been raised by Gedicks (2015), who calls attention to the fact that in practice, the ruling promotes a government-funded option as a less restrictive option.
References
Americans United for Life. AUL calls landmark U.S. Supreme Court decision upholding First Amendment conscience rights “a victory for common-sense.” 2014 June 30. http://www.aul.org/2014/06/aul-calls-landmark-u-s-supreme-court-decision-upholding-first-amendment-conscience-rights-a-victory-for-common-sense/. Accessed 23 June 2015.
Augusta Chronicle Editorial Staff. This is not a war. The Augusta Chronicle 2014 July 2. http://chronicle.augusta.com/opinion/editorials/2014-07-02/not-war. Accessed 20 May 2015.
Bassett L. Arizona birth control bill penalizes women for using contraception for non-medical reasons. The Huffington Post. 2012 Mar 13.
Berg T. Religious accommodation and the welfare state. Harvard Journal of Law and Gender. 2015;38: 103-151.
Berry S. Pro-life community celebrates SCOTUS hobby lobby decision. Breitbart. 2014 June 30. http://www.breitbart.com/big-government/2014/06/30/pro-life-community-celebrates-scotus-decision-for-religious-freedom-against-obamacare-hhs-abortion-pill-mandate/. Accessed 19 Jun 2015.
Burke D. Mormon church backs LGBT rights- with one condition. CNN. 2015 Jan 28. http://www.cnn.com/2015/01/27/us/mormon-church-lgbt-laws/. Accessed 28 July 2015.
Donnelly J. Universal human rights in theory and practice. Ithaca: Cornell University Press; 2013.
Dreweke J. Contraception is not abortion: the strategic campaign of antiabortion groups to persuade the public otherwise. Guttmacher Policy Rev. 2014;17(4).
Faith and rights: a test for the justices. The New York Times. 2014 March 24.
Fraser N, Gordon L. Contract versus charity. Socialist Rev. 1992;22(3):45–67.
Fredman S. Human rights transformed: positive rights and positive duties. Oxford: Oxford University Press; 2008.
Gedicks FM. One cheer for hobby lobby: improbable alternatives, truly strict scrutiny, and third-party employee burdens. Harvard J Law Gender. 2015;38:153–76.
Health and Human Services (HHS). Affordable care act rules on expanding access to preventive services for women. 2013. http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html. Accessed 18 July 2015.
Health and Human Services (HHS). Your rights under the federal health care provider conscience protection laws. 2012. http://www.hhs.gov/ocr/civilrights/provider_conscience_factsheet.pdf. Accessed 19 July 2015.
Henshaw S. Ralliers protest obamacare mandate. Reading Eagle (PA) 2013 July 28.
Hitchcock J. The French connection. Touchstone. 2011.
Howe A. Court rules in favor of for-profit corporations, but how broadly? In plain english. SCOTUSblog. 2014 June 30. http://www.scotusblog.com/2014/06/court-rules-in-favor-of-for-profit-corporations-but-how-broadly-in-plain-english/. Accessed 20 July 2015.
Keller B. Conscience of a corporation. The New York Times. 2013 Feb 10.
Kliff S. Interview: the legal case against the contraceptives mandate. The Washington Post. 2012 Feb 15.
Lake Research Partners. Catholics and birth control coverage. 2012 Feb 7. http://www.lakeresearch.com/news/Catholics%20and%20birth%20control.Lake%20Research%20Partners.pdf.
Leef G. Hobby Lobby and Harris v. Quinn- a pretty good day for the first amendment. Forbes. 2014 July 1. http://www.forbes.com/sites/georgeleef/2014/07/01/hobby-lobby-and-harris-v-quinn-a-pretty-good-day-for-the-first-amendment/. Accessed 30 July 2015.
Lipka M. Americans split over whether businesses must serve same-sex couples. The Pew Research. 2015 Mar 30.
Monahan J, Gacek C. FRC submission on HHS contraceptive mandate. 2011 Sept 30. http://downloads.frc.org/EF/EF11I58.pdf. Accessed 29 Jun 2015.
National Conference of State Legislatures (NCSL). Pharmacist conscience clauses: law and information. 2012 May. http://www.ncsl.org/research/health/pharmacist-conscience-clauses-laws-and-information.aspx. Accessed 3 Jun 2015.
NeJaime D, Siegel R. Conscience wars: complicity-based conscience claims in religion and politics. Yale Law J. 2015;124:2516–91.
Park A. The legacy of the Hobby Lobby case: protecting anti-gay discrimination? Mother Jones. 2014 July 9. http://www.motherjones.com/mojo/2014/07/hobby-lobby-anti-gay-discrimination. Accessed 20 July 2015.
Piety TR. Why personhood matters. Const Comment. 2015;30:101–28.
Posner S. OB/GYN corrects bishop’s false claim about how contraceptives work. Religion Dispatches. 2012 Mar 7. http://religiondispatches.org/obgyn-corrects-bishops-false-claim-about-how-contraceptives-work/. Accessed 21 July 2015.
Sekulow J. Hobby lobby case—three reasons why corporations must have religious freedom. FoxNews.com. 2014 Mar 25. http://www.foxnews.com/opinion/2014/03/25/hobby-lobby-case-three-reasons-why-corporations-must-have-religious-freedom.html. Accessed 29 Jun 2015.
Sepinwall AJ. Conscience and complicity: assessing pleas for religious exemptions in Hobby Lobby’s wake. U Chi Law Rev. 2015;82(4).
Sepper E. Gendering corporate conscience. Harv J Law Gender. Winter 2015;38:193–233.
Shapiro I. Symposium: mandates make martyrs out of corporate owners. SCOTUSblog. 2014 Feb 24. http://www.scotusblog.com/2014/02/symposium-mandates-make-martyrs-out-of-corporate-owners/. Accessed 20 July 2015.
Sligh H, Mitchell R. Which religious practices should be protected? National Review Online. 2015 Apr 24. http://www.nationalreview.com/article/417391/which-religious-practices-should-be-protected-howard-slugh-mitchell-rocklin. Accessed 30 Jun 2015.
Smith WJ. Hobby Lobby protects another company. National Review Online. 2015 Jan 13. http://www.nationalreview.com/human-exceptionalism/396297/hobby-lobby-protects-another-company-wesley-j-smith. Accessed 30 Jun 2015.
Stolzenberg NM. It’s about money: the fundamental contradiction of Hobby Lobby. S Cal Law Rev. 2014;88:727–68.
Texas Right to Life. Supreme Court’s Hobby lobby decision protects pro-life Americans, upholds religious freedom. 2014 june 30. http://site.texasrighttolife.com/a/1237/Supreme-Courts-Hobby-Lobby-decision-protects-ProLife-Americans-upholds-religious-freedom#.VtMqevF_hGQ. Accessed 23 June 2015.
The Becket Fund. Pastor Rick Warren on hobby lobby lawsuit. 2013 Jan. 4.http://www.becketfund.org/pastor-rick-warrens-on-hobby-lobby-lawsuit/. Accessed 2015 June 30.
The Guttmacher Institute. An overview of minor’s consent law. State policies in brief. 2015a. Accessed 1 Aug 2015.
The Guttmacher Institute. An overview of state abortion laws. State Policies in Brief. 2015b. Accessed 1 Aug 2015.
Weber T. Hobby Lobby symposium: the exercise of religion is inseparable from human activity—including supporting one’s family. SCOTUSblog. 2014 Jun 30. http://www.scotusblogcom/2014/06/hobby-lobby-symposium-the-exercise-of-religion-is-inseparable-from-human-activity-including-supporting-ones-family/. Accessed 20 July 2015.
Wuerl D. Protecting our catholic conscience in the public square. The Washington Post. 2012 May 23.
Young C. Hobby Lobby ruling is not a ‘war on women’. Newsday. 2014 July 1. http://www.newsdaycom/opinion/columnists/cathy-young/hobby-lobby-ruling-is-not-a-war-on-women-cathy-young-18618862. Accessed 26 Jun 2015.
Author information
Authors and Affiliations
Copyright information
© 2016 The Author(s)
About this chapter
Cite this chapter
Hagel, A.V., Mansbach, D. (2016). Between Conservatism and Libertarianism: Pro-life Strategy After the ACA. In: Reproductive Rights in the Age of Human Rights. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-137-53952-6_5
Download citation
DOI: https://doi.org/10.1057/978-1-137-53952-6_5
Published:
Publisher Name: Palgrave Macmillan, New York
Print ISBN: 978-1-137-53951-9
Online ISBN: 978-1-137-53952-6
eBook Packages: Political Science and International StudiesPolitical Science and International Studies (R0)