I was not going to comment on the recent US Supreme Court’s deeply disappointing decision in the Hobby Lobby case. But then I read Penelope‘s piece, and rethought – because she argues what I’ve been thinking: People who don’t actually experience what you’re experiencing should refrain from giving set-in-stone decrees on how to manage your experience. So, in short, desist with the judgement or commandments.
Certainly no legal rulings with far-reaching negative effects.
Which brings me to the US Supreme Court Hobby Lobby decision. Is it justly conceivable that five male Justices weighed the balance accepting corporate entities to deny coverage of all forms of birth control – a ruling that will affect women?
The Hobby Lobby case is the first time that a Court has allowed a corporate entity to deny employees a federal benefit, entitled to by law, (birth control – in all its forms) because of its owner’s religious beliefs, embodying corporations with personhood. The ruling is steeped in a gendered outcome: negatively affecting mainly women (with men being a secondary casualty, and economic progression and access a viable third) and, as usual, will most severely affect poor and minority women. Women, who, it is widely argued, need the easiest access to consistent birth control if they are to enjoy the very basics of our first world society: access to the workplace and reproductive control. Justice Ruth Bader Ginsburg wrote exactly this, powerful dissenting to a ruling she viewed as denying women their reproductive freedom and allowing commercial enterprises to “opt out of laws (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” A capitalist marketplace consisting of workplaces where people exchange time and work for payhas now become a place where cultural wars are fought: where the United States is allowing religious faith to supersede, if not at the very least, meddle in an employee’s benefits. Since work (re: economic survival) and health benefits are intrinsically linked, placing religious beliefs as a star player in the mix sets a dangerous precedent.
The decision is further disappointing in that the group Hobby Lobby objected to birth control based on views that certain substances in birth control induce abortion – a belief that has been disproved, time and again, in that birth control acts on preventing conception before it takes place, not aborting it afterwards. Even emergency birth control does not abort fetuses but rather, delays ovulation. In Canada, pharmacists clearly indicate that Plan B won’t work if successful implantation of a fertilized egg has already occurred. The Supreme Court has now given worrisome legal weight to these unsubstantiated claims, weighing in on a medical issue in terms heavily steeped in moral and religious beliefs, denying factual evidence to the contrary. That Hobby Lobby invests more than 73 million dollars in the very same companies that make the reproductive products they are objecting to on religious grounds seems sacrilegious, if not farcical, at best.
A compilation of many recent research studies on the availability of birth control is available here by the NYTimes, demonstrating the already dangerous scarcity of birth control, the inaccurate information provided to women by the very people they entrust their health to, the exorbitant costs of both contraception and emergency birth control and the high percentage of pharmacists and doctors who already sway their patients differently based on their own religious beliefs. The misinformation and deception is disheartening.
A careful reading of both the Religious Freedoms Restoration Act of 1993 and theAffordable Care Act of 2010 does not bring to light persuasive evidence either that corporate entities cannot worship freely or advocate against birth control, nor that women must use the insurance to cover their reproductive rights. Indeed, corporations pay into general health insurance and this provides coverage for a breadth of medical services. What a woman does or does not choose is between herself and her physician – not her bosses’s beliefs and her physician. The Justice’s interpretation of ‘substantial burden’ (as in the government cannot substantially burden a person’s free exercise of religion) seems to disregard the affecting clause:unless the burden is necessary for a ‘compelling government interest’ and in achieving it by the ‘least restrictive means.’ This disregard fails also to note that religious faiths must be accommodating so as not to burden others as well. Such a narrow interpretation and the Court’s finding that the Federal Care Act tells corporations that ‘their beliefs are flawed’ is beyond far-reaching. To this, it would be remiss of me to not let Justice Ginsburg’s words speak with precision and clarity:
“The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent ‘tell the plaintiffs that their beliefs are flawed,” she wrote. “Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must decide is not ‘the plausibility of a religious claim…’ but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States.”
Finally, the Hobby Lobby decision lays the very unsettling groundwork for other corporate entities to reduce or hinder benefits based on religious beliefs (an exemption previously only given to religious not for profit entities, ie, churches), in a form of religious and gender-based discrimination with widespread consequences. Not only does the ruling disregard both the fundamental health needs and the ‘sincerely held beliefs’ of the employees, it also presumes that women’s interests or public health are not compelling interests.
The government already ‘forces’ corporations to abide by many substantially burdenful federal laws to prevent them from acting in manners harmful to their employees and to abide by federal regulations that serve a greater public good. This was precisely the reasoning for the Federal Care Act covering birth control, as it was deemed to be of compelling interest to public health, social stability and optimal reproductive choices as well as to a woman’s well-being. Justice Alito, writing for the majority, unfortunately doesn’t agree, as both gender equality and public health are, in his view, too broad of terms to be ‘compelling interests.’ While gender equality might not be something that everyone agrees is desirable, the public health benefits of birth control are undeniable – not to mention the vast economic benefits. The government has already allowed corporations to ‘opt out’ from health insurance (meaning they wouldn’t have to cover birth control at all) – reducing Hobby Lobby’s argument to faith-based claims on right and wrong, something that, as Justice Ginsburg states, is not a matter that the Court can or should decide.
For that matter, can we touch briefly on the supposed religious grounds that Hobby Lobby claims influence their right not to cover birth control? In a way, this case can be boiled down to a far more base but prevailing concern among religious men (and some women): Should women be allowed to freely have sex before marriage for reasons other than procreation? And if they do, does that mean they are enjoying sex? Does that mean they are not as chaste as we want our women to be? Who decides a woman’s supposed purity? Should women have sex the way men can? If we allow for women’s reproductive rights to stand, will we be encouraging promiscuity?
Shouldn’t women have a say in their own lives?
This brings me back to my initial point. The Supreme Court’s five right-leaning male justices have ruled on a decision that will immediately affect 14 000 female employees of the Hobby Lobby corporation. Should we not have demanded that this ruling be supported by at least one of the female justices of the Court? When the US House holds a committee session on birth control, should we not have demanded that at least one member of the panel be a woman? When the 2014 Global Summit on Women was recently held in Paris, shouldn’t we have gawked at not a single woman being up on stage?
The Hobby Lobby case will severely impact the lives of women and men and paves the way for the hundreds more cases awaiting the same rulings on religion v. birth control. It’s startling and indicative of changing times when a government and its Supreme Court so greatly disagree, and those responsible for the decision-making on both sides deserve to have both their records and motives dissected for better understanding. That five right-leaning male Justices decided this case does not only a disservice to the women the case will affect, but also for equality and to the trust and faith of the people in the Court itself.
A lot of decisions affecting women aren’t made by women, and that is a very dangerous trend to keep upholding.
This piece is cross-posted here with permission from The Eternalist