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FAGIN: The devil is in the details of Sebelius v. Hobby Lobby Stores

By: Barry Fagin
March 27, 2014 Updated: March 27, 2014 at 9:10 am
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This week the Supreme Court heard arguments in Sebelius v. Hobby Lobby Stores Inc. This is a high-profile, high-stakes Obamacare case. Ultimately, the court will be asked to shed light on the question of when it is acceptable to force Americans to choose between running a business and honoring their religious beliefs.

I want to live in a country where the answer is "never." But I'll settle for "not this time, and not this way."

Like so many social engineering attempts, the intentions of Obamacare are laudable. But like so many social engineering attempts, the devil is in the details.

We know that legislators and their staffers are neither infinitely wise, omniscient, nor benevolent. Legislation always has unintended consequences. The more complex the law, the greater the problems. Since Obamacare has about 11,000 pages (a stack of paper three feet tall), it's got a lot of problems.

A particularly nasty provision requires companies with 50 or more employees to provide health insurance with certain services, including all birth control devices approved by the Food and Drug Administration. Failure to comply results in a stiff fine. Sorry, I mean a tax penalty.

Suppose you've created a wealth-generating business successful enough to grow beyond fifty employees.

Suppose further you believe life begins at conception, and that artificial means to prevent the implantation of a fertilized egg is morally wrong. Under Obamacare, you must literally pay the government for the privilege to act on your conscience.

How have we fallen so far?

Hobby Lobby was founded by a Christian entrepreneur in his garage. It's grown to a chain of several hundred stores and several thousand employees. The founder, David Green, runs the company by Christian principles, and has the temerity to believe that he shouldn't have to choose between running his business and violating his conscience. So he and others are challenging this provision of Obamacare.

I happen to believe Green's views on the morality of contraception are mistaken. But that doesn't matter, or at least it shouldn't. I didn't create Hobby Lobby, he did. It's not my business, so to speak.

Can anyone seriously believe that access to contraception is some sort of urgent social crisis? Where is the evidence that women can't get birth control pills? Because of America's bizarre health care regime, prices vary widely, but it took me 15 seconds online to learn that in my zip code you can get a month's supply for less than $50. Surely America has more pressing problems than making cheap birth control cheaper?

But even if I'm wrong, and access to contraception is truly socially important, why is the compulsion of American citizens the best way to meet it? If we're really serious about removing barriers to contraceptive access, how about letting women buy them without a prescription, as the American College of Obstetricians and Gynecologists has endorsed?

Believe it or not, most of the women on the planet can get birth control over the counter. Why not American women? Before we make the David Greens of America pervert their consciences, shouldn't we try something that could accomplish the same goal in a far less coercive fashion?

Somehow, there's a mindset in this country that once a business becomes "big" (a more accurate term might be "successful"), society can do with it whatever it wants: Tax it, use it to support some social program, have it enrich group A at the expense of group B, or whatever America's political taste-makers have decided is the latest Good Thing.

An alternative view is that a business or a corporation exists purely for reasons that its owners decide for themselves. The only time society should step in is to prevent harm. The purpose of regulating business, or indeed any human activity, is to prevent negative consequences, not to compel positive ones.

The former view has gained ascendancy over the past few decades. This week the nation's highest court has a chance to turn the tide. Here's hoping.


Barry Fagin is a Senior Fellow at the Independence Institute in Denver, and a successful plaintiff in the Supreme Court case of Reno vs. ACLU et al. Readers can write Dr. Fagin at

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