By Ann Neumann
Knowing this first, that no prophecy of the scripture is of any private interpretation. –2 Peter 1:20, KJV
In August, when I learned that Conestoga Wood Specialties had lost their challenge to the “contraception mandate” in the Affordable Care Act, I called Charles Proctor, their lawyer. Conestoga, a Mennonite-owned company based in my hometown of Lancaster, Pennsylvania, was preparing to appeal their case to the US Supreme Court. I wanted to know if Norman Hahn and his family, Conestoga’s owners, would agree to an interview. Proctor was skeptical. “They’re very private,” he told me.
I from them. But the idea of privacy dogged me as I watched the US Supreme Court accept their case last week, along with that of the craft store Hobby Lobby. The Conestoga court petition states that the Hahns, “a family of five Mennonites and their closely-held, family-run woodworking corporation, object as a matter of conscience to facilitating contraception that may prevent the implantation of a human embryo in the womb.”
“Closely held” is used thirteen times in the appeal (which you can read in full here, posted online at the ACLU’s Challenges to the Contraceptive Coverage Rule page, along with updates on all such cases). The repeated use of “closely held” to describe Conestoga is intentional, and done with an eye to Citizens United, the 2010 Supreme Court case that ruled corporations had a right to free speech. “If you have First Amendment protection for free speech, then you should have religious freedom as well,” Proctor told the Lancaster Intelligencer Journal.
Conflating Conestoga Wood Specialties with the Hahn family, which the repeated use of “closely-held” means to do, is a way to erase the separation between the family and the corporation. Non-profits are exempt from some general laws that are otherwise meant to protect the rights of workers. Why aren’t “closely-held” corporations? The real question before the US Supreme Court then, despite the other many arguments for and against the “contraception mandate,” is this: whose beliefs are more important, an employer’s or an employee’s
The Conestoga appeal states:
The question presented is exceptionally important. Our nation was founded on freedom of religion, and our free-enterprise system allows entrepreneurs to pursue profit while also serving the common good. But the decision below puts these two foundational principles at odds. Must religious believers check their consciences at the door of their businesses, or may they generally live integrated lives of faith at work?
ou own the business, you decide what “lives of faith” look like there. In a dissenting opinion of the district court decision Judge Kent Jordan wrote, “The government takes us down a rabbit hole where religious rights are determined by the tax code, with nonprofit corporations able to express religious sentiments while for-profit corporations and their owners are told that business is business and faith is irrelevant. Meanwhile, up on the surface, where people try to live lives of integrity and purpose, that kind of division sounds as hollow as it truly is.”
But what of Conestoga employees’ “integrity and purpose?” What must they check at the door? While contraception–and abortion, for that matter–are legal, and discrimination against employees for race, gender, disability or religion is clearly illegal, the question of an employee’s rights is swept away in the structural details of the case. Corporations pay part of an employee’s salary in medical benefits, the argument goes, and business owners like the Hahns who contest certain contraceptions shouldn’t have to pay for them. (The Catholic Church religious non-profits have successfully argued the same thing with regard to contraception coverage for their non-profit employees.)
, opponents of the “mandate” like to note that an employee who doesn’t have contraception coverage can pay for it herself, out of pocket, or can independently purchase insurance that does cover it. But “up on the surface,” that’s easier said than done (just ask America’s 45 million uninsured). As we’ve seen with abortion restrictions across the country, limiting access to providers, instituting notifications and wait periods has proven more effective than attempting to overturn Roe v. Wade. If you make it impossible for an employee to access contraception it might as well be illegal.
It’s important to note that the Hahns’ opposition to “contraception that may prevent the implantation of a human embryo in the womb” is a wildly radical and minority view. As Lindsay Beyerstein writes at In These Times, “Medically speaking, a pregnancy begins when the woman’s body takes on life support for the embryo. This makes sense if you think about it. If a woman is undergoing artificial insemination, she doesn’t become pregnant the moment the eggs are inserted into her body. She has to wait and see if she gets pregnant from the insemination.”
It’s also important to note that these cases against the “contraception mandate” are ideological and political, employing a very narrow interpretation of who and what the right to religious freedom was established to protect. They challenge diversity, they privilege a specific type of belief, and they aim to uphold power structures that stifle protective laws. The Hahns are represented by Independence Law Center whose about page reads like the lawyers’ ads you see on the subway. “If you are a landlord and have religious objections to renting to unmarried couples….” The Affordable Care Act will not end the nation’s health care woes (insurance companies and employer-provided health care are part of the problem, not the solution), but as with the formation of any new law, the ACA gave anyone with a religious superiority complex the chance to shape policy according to their own views.
Conestoga has 930 employees. Hobby Lobby has 18,000. The other sixty-eight cases the ACLU has charted represent thousands more workers who stand to have their medical decisions dictated by their employers. What employee rights are next? Blood transfusions? Vaccines? (Cohabitation?)
The 1973 Roe v. Wade ruling was made on the basis of privacy–that women had the right to make their reproductive decisions without outside interference. Subsequent cases have affirmed that right, including the 1990 Cruzan v. Director which established that individuals may make their own medical decisions, even if they mean certain death. Rulings in favor of Conestoga and Hobby Lobby won’t end privacy, they’ll just make it impracticable. Yet it is this privacy, of belief or body, that we all consider our own closely-held business.
Ann Neumann is a Visiting Scholar at the Center for Religion and Media at New York University and contributing editor at The Revealer. She’s written for Guernica magazine, New York Law Review (forthcoming, January 2014), Religion & Politics, Killing the Buddha, and The Nation, among others. Her chapter on class and hospice use will appear in Living with Class: Philosophical Reflections on Identity and Material Culture (Palgrave Macmillan, December 2013), edited by Brian Seitz and Ron Scapp. Neumann is currently writing a book about a good death.