GELFAND’S WORLD-Most of the people on my side of the fence think the Hobby Lobby decision was wrong, and possibly a disaster. There is no need to go into the legal details, as lots of other people have made the arguments quite adequately. Simply put, the decision ranks one human right, freedom of religion, above a social benefit, the chance to get medical insurance.
A lot of the arguments get into scientific points, such as the undeniable fact that the Supreme Court justices got it wrong on whether birth control methods such as Plan B are, or are not, abortafacients (it is not). The real point, it seems to me, is that the American people are still divided over the question of whether some kind of guaranteed access to medical care ought to be our national policy.
Strangely enough, this deeper question is inspired by, of all things, an online column about the future of soccer's World Cup. In brief, the next two World Cup tournaments are scheduled to be held in dictatorships -- Russia and Qatar. One may be a quasi-republic with rules that are conveniently ignored when some rock group decides to protest its tyranny in public, and the other is a monarchy with rigid rules of human behavior. In either case, tourists are going to feel uncomfortable, just as they worried in advance about what things would be like at the last winter Olympics in Russia.
So what does Qatar and its system of rule have to do with the America of Hobby Lobby? The deeper question has been asked and partially answered by Pedro R. Pizano. The basic question involves human rights as opposed to the concept of social justice. Human rights involve things like freedom of speech and of the press, and the right to a fair trial.
Pizano quotes another author, Aryeh Neier, who points out that human rights are limits on governmental power, whereas social justice involves redistribution of income. The distinction matters, because totalitarian governments -- particularly those that have oil -- can attempt to buy off the population using economic benefits while maintaining legal systems that oppress women. The concern is that a worldwide movement in favor of human rights suffers when the people who would most benefit are bought off through the creation of a welfare state. There are curious parallels to American right wing thought that become apparent, although we don't have room to go into them in detail here.
Back to Hobby Lobby, and the tension between human rights and social benefits. I think that most liberals can agree that the Hobby Lobby decision goes against our views on social justice. It sabotages a need that many women have in favor of a particular religious point of view. In other words, the decision confronts a Constitutional tension between freedom of religion and majority rule.
The Affordable Care Act (aka Obamacare) was passed by majorities in both houses of congress and signed by the president. That's majority rule. Under our system, the Supreme Court has the power to decide whether a law made according to majority rule offends one of our basic rights such as freedom of religion.
The crux of the matter, I would argue, is the distinction between human rights and social benefits legislation. The conservative side tends to treat any increase in taxation, particularly when those taxes go to social welfare, as an imposition on their rights. A fraction of those on the liberal side are increasingly arguing that social benefits such as health insurance ought to be treated as equivalents to basic human rights. I would argue that both sides have a point, but that both sides are also wrong in part.
As Pizano and his colleagues point out, human rights ought to be immediate, and enforceable by the courts. They are not to be traded away in exchange for public handouts.
The gray area that Hobby Lobby confronts involves the rights of people to have and enforce their own religious beliefs, even if that enforcement involves employees. It's a gray area because most of us accept the idea that religious organizations can instruct their members not to use birth control. The question involves how far a business can go in depriving its employees of a social benefit that has been instituted by act of congress.
That part of the argument has been thoroughly discussed, with a sharp gap between the right and the left.
What's been missing is a discussion about the slow but steady acceptance among Americans that some medical benefits ought, by right, to be considered to be more like human rights than like welfare or unemployment insurance. It takes the idea of a social benefit and upgrades it to something that is so important that it should be treated more like a human right. I tend to disagree. My disagreement is not so much over the deeper philosophy, but over the pragmatic question. I think we can get to where we want to go -- and that both liberals and conservatives can find some middle ground -- by taking this question according to our time honored methods.
In other words, social benefits are inherently political. They are added and subtracted, in a process that involves constant renegotiation. Social Security did not exist at the beginnings of the republic, Medicare was only added in the past half century, and the addition of additional prescription benefits during the George W. Bush administration were controversial at the time.
Liberals ought to concede that social benefits including Obamacare are political constructs that are subject to upgrading and downgrading, as the public will and the balance of power in congress determines. Conservatives ought to concede that the existence of public spending to achieve social benefits is not automatically a violation of their human rights. In brief, the power to tax is inherent in the existence of unified government, and short of clear violations of the Bill of Rights, the power of the congress to create social benefits has been clearly established.
There is a line of argument on the far right that the current welfare state is some kind of violation of their Constitutional rights. I think we would all be better off, and the country would operate more harmoniously, if conservatives did not wrap the Constitution around what is basically an ongoing political argument. The conservative side continues to argue for increased military spending in spite of liberal opposition. Conservatives should accept the mirror argument, that liberals will push for increased spending on social benefits legislation.
In return, liberals can agree that spending on social benefits is a political question that has many answers and depends on severely divergent viewpoints. It is up to the liberal side to convince the country that regulation of medical insurance is an important item. We can leave off the argument that it is some kind of basic human right. If we accept the distinction that human rights are limits on government power, then this point becomes obvious.
{module [862]} {module [662]}
There is a counter-argument (also mentioned in Pizano's article) that we should not make this distinction, and that social justice should be treated equally with human rights. There is a point to this, in that people who are starving have an immediate need that freedom of speech didn't solve. But in the United States, we can avoid getting into that trap, and merely work within the political sphere for improved social conditions.
If liberals and conservatives can agree that arguing over social benefits legislation is merely political, and not a matter of competing sacred causes, then we may be able to communicate with each other better.
At the more pragmatic level, it is increasingly apparent that the majority of Americans are coming to accept Obamacare as useful. This is a step (dreaded by some Republican leaders) in the right direction as far as liberals are concerned. At the same time, the conflict between religious belief and the requirement that insurance policies provide for birth control and abortion is not going to go away. The obvious solution, as difficult as it is clear, is to finally break the link between medical insurance and employment. I suspect that this is the direction that Obamacare will eventually take, though it may take years or decades.
(Bob Gelfand writes on culture and politics for CityWatch. He can be reached at [email protected])
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CityWatch
Vol 12 Issue 59
Pub: Jul 22, 2014
