I wanted to write a few words about the recent revelations published in Mother Jones that “the Hobby Lobby 401(k) employee retirement plan held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions.” Of course, Hobby Lobby is the primary plaintiff in the case recently heard by the Supreme Court, in which Hobby Lobby claims that the Health and Human Services contraceptive mandate is a violation of its religious freedom. At dotCommonweal, Grant Gallicho has picked up this story, analyzing it in terms of the Catholic ethical principle of cooperation with evil. Gallicho judges that the cooperation involved in investing in these drug companies is similar to, if not worse than, that involved in providing insurance that covers contraception and the morning-after pill. But is that the case?
First, Mother Jones’s motive is clearly to discredit Hobby Lobby and its case before the Supreme Court. Surprisingly to me, Gallicho seems to accept that this revelation poses a problem to the case. He writes:
What might last week’s oral arguments have sounded like had this been reported earlier? Hard to say. But I wouldn’t want to defend a plaintiff claiming that any role facilitating the use of potentially abortifacient drugs is inimical to its religious beliefs but can’t be bothered to figure out whether the millions it invests annually directly supports the production of drugs that always cause abortions. One or two justices might start to wonder how sincerely Hobby Lobby holds those beliefs it says ought to exempt them from complying with the law.
Luckily, however, our constitutional rights do not depend on our moral consistency. Do I lose my religious liberty by failing to live up to what I confess as a Catholic? Of course not. Does Mother Jones lose its freedom to criticize McDonald’s wage policies even though in some cases it pays its interns less than the minimum wage? No. So I don’t believe this revelation has any bearing on the legal case; this is just a distraction from the real question of whether a corporation has a right to religious freedom the same way an individual or explicitly religious organization does.
So the revelation is irrelevant to the legal question, but does it involve moral hypocrisy? Maybe, but maybe not. Personally, I have never been convinced that the contraceptive mandate involves the sort of illicit cooperation with evil that the U.S. Catholic bishops believe it does, but what is important for my argument is what the owners of Hobby Lobby think, not what I think. If the contraceptive mandate does involve cooperation with evil, is there a plausible way to differentiate that from investing in the drug companies?
First of all, I think Gallicho misreads exactly what has been revealed about Hobby Lobby. He claims that “Hobby Lobby invests millions in companies that manufacture the very products they want to be exempt from covering in their employee health plans” (italics mine). But, as the Mother Jones article itself points out, the investments are not in the drug companies themselves, but in nine mutual funds, and “Each fund’s portfolio consists of at least dozens if not hundreds of different holdings” (the article also notes that Hobby Lobby invests in fifteen other mutual funds for which the individual holdings are unavailable). So only a small fraction of the investment goes toward the drug companies.
The point here is not the amount being invested in the drug companies, however, but whether investment in a mutual fund introduces an element of remoteness, which I believe it does. Hobby Lobby did not choose to invest in the drug companies directly, but rather in mutual funds that, among hundreds of other companies, invest in those drug companies.
Second, it would be one thing if these companies only produced the morning-after pill, but these products are only a small part of the business of Pfizer, Bayer, and AstraZenica, for example. So does investing in these companies necessarily imply illicit cooperation in the production of the objectionable products? Now obviously Hobby Lobby cannot earmark its investments solely for socially beneficial drugs, but because of the fungibility of money, Hobby Lobby can claim that at least its investment isn’t aimed directly at the unethical drugs, either (This seems like it would be similar to the case of paying taxes that end up paying for an unjust war). This is an important difference from the contraceptive mandate. With the mandate, an employer is quite specifically and unquestionably paying for a product that includes coverage of contraception, whereas with investing, the investor’s money is not specifically funding the unethical activity.
As I mentioned, Gallicho not only thinks that investing in these drug companies is similar to, but even worse than, cooperating with the contraceptive mandate. His argument is that with the contraceptive mandate, it is still the employee who chooses to use contraception, while it is Hobby Lobby that has chosen to invest in the drug companies. Gallicho rightly notes that Hobby Lobby could have invested in mutual funds where these drug companies would be excluded. While it may have been more virtuous for Hobby Lobby to do so, it was not necessarily obligatory. As the above analysis shows, Hobby Lobby’s decision was not to invest directly in the drug companies, but rather to invest in mutual funds that in turn are invested in the drug companies; probably more importantly, the investment was not made specifically in the production of the morning-after pill, but in companies for whom the production of those pills is only a small fraction of their business and who produce many other beneficial medications.
My goal here was not to defend Hobby Lobby’s decisions, but rather to show that there are at least plausible reasons that Hobby Lobby could draw on to explain those decisions. The charge of hypocrisy is a serious one, and charity demands that we explore the possibility of good faith. Although also critical of Hobby Lobby, Michael Sean Winters is certainly right that
In a complex society, we all take actions without intending to do harm, but find ourselves entangled with those whose moral compass is very different. Trying to figure out how to proceed is easy if you are Amish but it is not so easy for a Church, or a company, that is involved in the world.
Given that difficulty, we should recognize that some may proceed in ways that seem contradictory to us, but the response should be patient dialogue rather than condemnation.