These companies include Teva Pharmaceutical Industries, which makes Plan B and ParaGard, a copper IUD, and Actavis, which makes a generic version of Plan B and distributes Ella. Other stock holdings in the mutual funds selected by Hobby Lobby include Pfizer, the maker of Cytotec and Prostin E2, which are used to induce abortions; Bayer, which manufactures the hormonal IUDs Skyla and Mirena; AstraZeneca, which has an Indian subsidiary that manufactures Prostodin, Cerviprime, and Partocin, three drugs commonly used in abortions; and Forest Laboratories, which makes Cervidil, a drug used to induce abortions. Several funds in the Hobby Lobby retirement plan also invested in Aetna and Humana, two health insurance companies that cover surgical abortions, abortion drugs, and emergency contraception in many of the health care policies they sell. [source]Gallicho seems to think this is some sort of damning proof that Hobby Lobby isn't being true to their claimed principles:
The problem for Hobby Lobby's argument is that investing in companies that manufacture drugs and devices that enable contraception and abortion is quite different from paying for insurance that enables an employee's choice to use services the Greens object to. Hobby Lobby selects the funds it invests in. As Redden points out, if the Greens wanted to, they could have chosen funds that screen out so-called sin stocks (they tend to perform as well as other funds). But they didn't. (Hobby Lobby's legal counsel, the Becket Fund, did not immediately reply to my request for comment.)I find this argument against Hobby Lobby unconvincing at two levels.
Hobby Lobby's employee health insurance used to include the contraception services the Greens don't want to cover anymore. Obamacare did the Greens the favor of waking them up to the realities of the health-insurance market, so before filing suit they canceled coverage of the services they consider morally objectionable. They seem not to have been so scrupulous with their investments--and investments are a different animal. The cooperation is more direct. Basically Hobby Lobby is saying to these funds: Here's our money. Make more of it for us doing what you do. From a moral-theological perspective, that brings Hobby Lobby significantly closer to the evil in question than would any premium payments that could allow employees to use contraceptive services. First, in the United States, benefits are considered part of an employee's compensation. Second, employees might not avail themselves of such services. Third, if the Greens decided to stop offering health coverage, employees would most likely end up buying plans that included contraception on the health-care exchanges. Obamacare doesn't require any employers to cover drugs designed to induce abortion.
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.
First, I think it's a reach to hold that someone is making a moral statement with their selection of a mutual fund. Mutual funds typically invest in a large number of companies, they change their portfolio relatively frequently, and the selection criteria, especially in the sort of funds offered in a typical 401(k), are often fairly rote: all stocks that are on a given index, for instance: all 500 stocks which are on the S&P 500 index. I do not think that you are any more morally endorsing the companies invested in by a mutual fund by investing in it via a 401(k) than you are endorsing every person and company which your bank makes loans to when you put money into a savings account and earn interest based on the success of the bank's loans. I can imagine some edge cases where this would not apply. For instance, if the selection criteria of a fund were specifically around some type of business activity that you object to morally (e.g. a fund specifically designed to invest in pornography, abortion providers and sweat shops) I think you would be considered to be violating your morals by investing in that fund. However, if the "Small Cap Index" fund turns out to include investments in a few companies you object to (simply because they fall within the market capitalization range the fund is designed to invest in) I don't think you're necessarily morally involving yourself in those companies activities. There are funds (such as Ave Maria Mutual Funds) which specifically seek to duplicate the criteria of other investment funds while leaving out companies involved in certain morally objectionable practices, and it might represent a conscientious choice for a company such as Hobby Lobby to choose a fund provider such as that instead, but I think Gallicho significantly over-estimates the moral involvement in a companies mission which an investor in a mutual fund has.
Second, and far more importantly, I think it's important to hold that if we believe in religious freedom at all, that religious freedom is not predicated on the consistency of the person seeking to assert his religious freedom. Let's think for a moment about what the idea of religious freedom is. I'd argue that it means that as a political society we believe that there is a value to not forcing people to violate their claimed religious/moral convictions, even if that means the rest of society having to incur some degree of inconvenience or inconsistency. (So, for example, the Amish requested and received an exemption to the Social Security system when it was instituted, because they believed that relying on a state run retirement plan violated the solidarity required of their communities.) As such, it seems to me that the granting of the leeway for religious freedom is very much dependent on what the believer claims is required by his beliefs -- not what outside observers think may be reasonable. Thus, the issue of whether Gallicho thinks it is consistent of the owners of Hobby Lobby to want to purchase health coverage that does not cover emergency contraception, while having standard mutual funds available in their company matched 401(k), really doesn't come into play. The key point is that the owners themselves assert that it would be a violation of their religious principles to purchase the health coverage in question.
One can imagine some interesting reverse examples of this. For instance, suppose that at some point in the future an "Ownership Society Retirement Act" is put in place, which requires all companies to offer a 401(k) with a minimum amount of matching, and specified certain index funds such as the S&P 500 which should be available in all such plans. Commonweal announces that they object to being forced to offer a retirement program which includes investments in petroleum companies and arms manufacturers. Should people who don't like the folks at Commonweal get to veto their claim by digging up some way in which Commonweal relies for its existence on the military and the conventional energy sector?
I would argue: No. Frankly, moral scruples can often look a bit odd to those who do not share them. I don't pretend to understand why the Amish are okay with some uses of modern technology and not okay with others, but I do think that it's important to not force them to violate the moral scruples which they say they have. Similarly, regardless of whether one thinks that Hobby Lobby ought to also change the investments available in their 401(k), I think that their religious objections to offering coverage for the morning after pill on their company health plan should be respected.