David Oderberg has a forthcoming article in the Journal of Medical Ethics that contains a discussion of the Supreme Court’s reasoning in Burwell v. Hobby Lobby. In short, Oderberg agrees with the conclusion of the Hobby Lobby case, but disagrees with the reasoning employed by Justice Alito. From a blog post summarizing his article:
[M]y view is that the Hobby Lobby decision was correct. The Supreme Court, however, came to the right conclusion for the wrong reasons, for in the end the majority sidestepped the philosophical questions – not wanting, understandably, to get bogged down in difficult theoretical issues going beyond case law and statute. After all, they’re judges, not philosophers! Still, I think the court erred in its reasoning. It thought that sincerity of religious or ethical belief covered not merely the belief that abortion is wrong, or that abortifacient contraception is wrong – US courts do not second-guess a sincere religious or ethical belief – but also beliefs held by the plaintiffs about whether they would indeed be illicit co-operators.
In my new article, ‘Further Clarity on Co-operation and Morality’, I challenge the reasoning in Hobby Lobby. Courts must not confuse primary beliefs of religion or ethics, where sincerity is not replaced by a reasonbleness [sic] test, with beliefs about whether, even on the principles laid down by one’s own religious or ethical code, one would count as an illicit co-operator. In my view, the theory of co-operation found in the theology books cited by the Supreme Court is plausible independently of its having been developed by theologians, whether Catholic or otherwise. Being found in a theology book does not make a proposition ipso facto religious in nature. If being an illicit co-operator depended merely on one’s sincere belief that one were, absurd results would follow. Already, various organisations in the US already covered by an opt-out/exemption are challenging the opt-out itself on the ground that they sincerely believe opting-out makes them illicit co-operators. They claim that the very act of opting out is itself a form of co-operation! I submit this can’t be right. ‘