WHEN THE TALIBAN MEETS HOBBY LOBBY

 BY STEVE COLL

JULY 2, 2014

Tehrik-e-Taliban, the Pakistani Taliban, is a closely held, profit-making enterprise organized on religious principles. One of its principles, announced as public policy in July, 2012, is that children should not be inoculated against polio, because the vaccines violate God’s law. So sincere are the Taliban’s religious beliefs that its followers have assassinated scores of public-health workers who have attempted to administer polio vaccines in areas under Taliban control or influence.

This year, three out of five of the world’s new polio cases have been found in Pakistan’s Federally Administered Tribal Areas, particularly in North Waziristan, where the Pakistani Taliban and groups like it have run a de-facto state since about 2008. The great majority of the polio victims are children under two years old.

If the Pakistani Taliban, aided by clever lawyers, organized a closely held American corporation, and professed to run it on religious principles, might its employees be deprived of insurance coverage to inoculate their children against polio? And would the Supreme Court, by the five-to-four decision issued on Monday in Burwell v. Hobby Lobby Stores and in Conestoga Wood Specialties v. Burwell, endorse such a move?

In setting up stateside to enjoy the freedom proclaimed by the Court, the Taliban would have to overcome its awkward position as a designated Foreign Terrorist Organization under American law. Shooting health workers with whom the Taliban disagrees would also be out of the question, since such acts would bring into play other strands of American law, such as the prohibition on homicide. (Residents of the F.A.T.A., governed by tribal codes that legitimize revenge killing, do not enjoy the same protection.) But these are obstacles that the Taliban’s lawyers, if they were good ones, might well overcome. The Taliban could inspire American followers to put together a corporate charter separately and independently, without any financial or military links to the banned mother organization. And the American offshoot could learn to hire lobbyists rather than gunmen.

Justice Samuel Alito, writing for the Court’s conservative majority, sought to evade such thought exercises by predicting, without evidence, that there will not be “a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions.”

Why not? Is it because the justices do not intend to extend their reasoning to companies that hold religious views less proximate to their own Christian beliefs? Or because the judges believe that they can enforce what they imagine to be a rational or permissible resistance to reproductive rights for women, while blocking what they might see as irrational resistance to transfusions and vaccines? As it happens, it is not just the Taliban who are paranoid about vaccines; many American groups, secular and religious, evince such skepticism. Some groups believe, for example, that certain childhood vaccines may cause autism, even though there is no scientific basis for such beliefs.

Perhaps the Supreme Court’s majority cannot fully imagine that religiously motivated litigants—Muslim, Christian Scientist, Hindu, or other—as qualified and as American as the Hobby Lobby owners might ultimately use Monday’s ruling to enforce beliefs far outside of the decades-long campaign of Christian evangelicals and Catholics to limit the reproductive rights of women. If so, that is another failure of their reasoning, one that exposes what really seems to have gone on in this decision: four longtime adherents to the deeply rooted conservative movement to limit or ban abortion in the United States, joined by a fifth willing to defer to them, saw in the Hobby case an opportunity to advance their cause incrementally, and they reasoned to achieve that end—not, as their opinion claims, to construct a sustainable framework of religious resistance to public-health laws.

Because campaigners against reproductive rights have successfully mainstreamed their views within institutions like the Supreme Court, those views no longer seem radical even to many of their opponents. The Taliban have not similarly legitimized their philosophy because they are so indiscriminately violent and repressive, among other reasons. (Some religiously motivated radicals have assassinated abortion providers in the United States, but the gunmen are not commonly referred to here as terrorists.)

And yet, the impact on children, living and unborn, of the Taliban public policy on vaccines is not, arguably, different in category from the impact that the Hobby Lobby decision will likely have on the families of those who work at companies whose owners claim to run them on Christian principles, in one respect: the extrapolation of religious beliefs into public policy will damage the over-all health of affected families. The health consequences of failing to vaccinate children may be more predictable than the health consequences of blocking access to effective contraception. But, in both cases, there is no doubt that the consequences will be harmful. The difference lies partly in our cultural setting—and, in the case of the ongoing campaign to restrict the reproductive rights of American women, in our capacity for outrage.