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Jay Fleitman: Rights and the Hobby Lobby case

The recent Supreme Court decision in the Hobby Lobby case was put forward as clear evidence that a conservative Supreme Court would continue to restrict women’s rights.

In Burwell v. Hobby Lobby, the Supreme Court ruled that the religious convictions of the private owners of this corporation, who could not condone abortion, superseded the obligation of that corporation to pay for four specific contraceptive measures required under Obamacare.

The owners considered these four products to result in abortion, and therefore sought relief from the obligation to pay for them even as this corporation would still willingly pay for all other offered birth control products. There was no effort to forbid women employees of Hobby Lobby from obtaining these four products outside of the insurance coverage required by this corporation. Therefore, the right that was restricted by this Supreme Court decision was simply the right of these female employees to have someone else pay for these products.

In most of human history and in many current societies, the rights enjoyed by the members of a society were those behaviors allowed by their rulers, sometimes determined by traditions, sometimes by philosophy, sometimes by religious beliefs, and most often by the caprice of the ruler or ruling body.

It was a profound revolutionary leap that the founding of our form of government was based on the belief that humans had inherent natural rights, and that it was the duty of governments to guarantee those rights.

From the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, governments are instituted among men deriving their just powers from the consent of the governed.”

The Constitution was drafted to create a structure of government designed to protect those rights in large part by building in constraints on the power of government, thereby limiting the historic tendency for consolidation of power. The first 10 amendments to that initial Constitution delineated particular rights that the founding fathers thought were essential to a free society, the very first of which mandated that Congress could in no way prohibit the free exercise of religion, speech, the press, the right to assemble and that citizens had the right to petition the government for grievance.

The Ninth Amendment is often overlooked, and states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Certainly, essential American freedoms including the abolition of slavery and the right to vote for all Americans were enshrined in subsequent amendments to the constitution.

Citizens gain rights through other avenues outside the Constitution. Contracts written in the course of business and personal agreements offer the signatories certain rights defined within that contract. The Constitution is the ultimate contract of American society.

Similarly, laws drafted by Congress will confer upon citizens or certain groups of citizens defined rights to which they are entitled. For example, passage of the Medicare and Social Security legislation gives eligible citizens entitlement to the right of Social Security payment and health insurance coverage. The law that governs subsidies to private citizens for installing solar panels gives those citizens the right to expect reimbursement for that action.

Changes in those laws will change the citizen’s rights. As the age of eligibility has increased for Medicare and Social Security, those younger than the new eligible age are no longer entitled to these rights. If the subsidy for solar panels expires at a given time, citizens who install panels after that date no longer have a right to that subsidy. When the courts find a law illegal or unconstitutional, then the rights offered in the overturned law are no longer available.

Rights as derived from laws like these do not rise to the level of “unalienable rights,” those fundamental to human freedom. In the Burwell v. Hobby Lobby case, the Supreme Court had to weigh conflicting claims between those expectations for services described in the Obamacare legislation and rights subsumed under a guarantee of religious freedom. The judgment was between an entitlement that a desired specific product would be provided for free as opposed to a right that was the very first identified as “unalienable” by the Bill of Rights.

The four judges who comprise the so-called liberal wing of the Supreme Court made the judgment that an entitlement defined by a piece of legislation that was passed by dubious legislative means and that remains disliked by a majority of Americans should supersede the First Amendment of the Constitution.

The five conservative members of the court believed that a fundamental right of American freedom is preeminent over a guarantee that a personal product be provided gratis.

Voters should decide which kind of judgment is more crucial to our rights and freedoms.

Jay Fleitman, M.D., lives in Northampton. His column appears the first Tuesday of the month. He can be reached at opinion@gazettenet.com.

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