Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, April 2, 2014

How many Supreme Court Justices "invest annually" in companies or funds that "directly support the production of drugs that always cause abortions"?

Over at dotCommonweal, Grant Gallicho has a post titled "On abortion, Hobby Lobby looking wobbly." Gallicho comments on a Mother Jones report by Molly Redden: "Hobby Lobby's Hypocrisy: The Company's Retirement Plan Invests in Contraception Manufacturers." The source of Hobby Lobby's alleged hypocrisy is its retirement plan's investments in mutual funds whose holdings include Teva Pharmaceuticals, Pfizer, Bayer, AstraZeneca, and Forest Laboratories. According to Redden, these companies manufacture drugs or devices that Hobby Lobby objects to providing coverage of in the insurance offered to its employees. 

Suggesting that Hobby Lobby is insincere in its objections to facilitating the use of abortifacient drugs and devices, Gallicho suggests that "the cooperation is more direct" through these mutual fund investments than through no-copay insurance coverage. These mutual-fund investments, Gallicho asserts, "brin[g] Hobby Lobby significantly closer to the evil in question than would any premium payments that could allow employees to use contraceptive services."

I would be surprised if many shared Gallicho's assessment of moral culpability. Is an employer more morally culpable for contributing to cigarette smoking because (a) its retirement plan owns mutual funds that own shares in Altria, or (b) it purchases an employee benefits plan that includes vouchers for Marlboros at no additional cost to its employees?

Gallicho asks: "What might last week's oral arguments [in Hobby Lobby's case] have sounded like had this been reported earlier?" He is unsure. But I think it's safe to say that the arguments would have either proceeded exactly as they did or have gone slightly worse for the government.

Unlike Gallicho, the government has not challenged Hobby Lobby's sincerity. And more to the point of Gallicho's question, it is highly unlikely that the Justices would share Gallicho's assessment of comparative moral culpability. From their financial disclosures, it seems the only Justices who would be free of moral taint for the activities of companies whose shares are owned by mutual funds owned by the Justices would be Justices Kennedy, Thomas, and Sotomayor. (This is based on their 2010 disclosures, which are the most recent available at Oyez.) The other six Justices all own or have recently owned shares of mutual funds. And it is safe to assume that some of those mutual funds, particularly the broadly diversified funds, own shares in the same pharmaceutical companies that the mutual funds offered to Hobby Lobby's employees do Hobby Lobby does. Moral or theological merits of the argument aside, it would be bad lawyering to argue that these Justices bear some moral culpability for the actions of these companies because they "inves[t] annually [in funds that own shares of companies that] directly suppor[t] the production of drugs that always cause abortions." 

[Update: Edited for clarity.]

https://mirrorofjustice.blogs.com/mirrorofjustice/2014/04/how-many-supreme-court-justices-invest-annually-in-companies-or-funds-that-directly-support-the-prod.html

Walsh, Kevin | Permalink