Over the weekend, without a pressing deadline at hand, I sat down to read more closely the Supreme Court’s Hobby Lobby decision, and Justice Ruth Bader Ginsburg’s strong dissent. Maybe, in the heat of deadline, I had missed something important when I first judged the decision deeply offensive to women.
I had not.
If anything, the Hobby Lobby decision -- and the court ’s subsequent ruling three days later in a thematically similar matter involving Wheaton College -- is even more offensive and troubling than I first thought.
In Hobby Lobby, the court has now said that a boss’s sincere religious beliefs -- whether true or not -- trump an employee’s right to perfectly legal medical care, as long as the employee can get that care some other way, never mind the burden on the employee.
The court insisted its ruling does not place an unacceptable burden on female employees because the government has already set up an alternative process that allows workers to bypass the boss and get coverage. Hobby Lobby objects to two kinds of morning-after pills and two kinds of intrauterine devices. The craft chain's owners believe those methods prevent a fertilized egg from implanting in a uterine wall. As they believe that life begins at conception, such an outcome, in their view, is “abortion.”
Medical experts say that while this is in the realm of scientific possibility, it is not how such contraceptives work. They are designed to prevent fertilization in the first place. But, as the court said, only the Greens’ beliefs matter here.
The implications are kind of mind-boggling.
I am not a legal scholar, of course, but I see no reason that other for-profit companies can’t claim they oppose specific medical procedures on religious grounds. This is the potential "havoc" to which Justice Ginsburg referred in her dissent.
As Ginsburg noted, Jehovah’s Witnesses object to blood transfusions, Scientologists object to antidepressants. Some Muslims, Hindus and Jews object to medications “derived from pigs, including anesthesia, intravenous fluids and pills coated with gelatin.” Christian Scientists and others, she said, object to vaccinations. (Some groups object to vaccinations, as you can see here, because they are made from “aborted fetal tissue.”) What is to stop them from claiming such medical coverage unduly burdens their conscience? (Or, do you suspect, as I do, that the male members of the Supreme Court’s conservative majority, all of whom are Catholic, see the law through a different lens when it comes to the medical needs of women?)
To exclude itself from the contraceptive mandate, all a company has to do is fill out this government form outlining its objections (or “self-certifying”) and submit the form to its insurance company, whereupon the insurance company is supposed to notify the employees and provide them with separate coverage.
This process is referred to as the contraceptive mandate’s “accommodation.”
Writing for the majority in Hobby Lobby, Justice Samuel Alito confidently declared, “The effect of the … accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”
But guess what?
Three days after the court’s Hobby Lobby decision, in an opinion that was unsigned but apparently supported by all six of the court’s male justices, the court said an evangelical Christian college can ignore the accommodation while challenging it in the courts.
Wheaton claimed (as have other plaintiffs in cases wending their way through lower courts) that the very act of self-certification -- of filling out the federal government’s “Form 770” -- and sending it off to the Department of Health and Human Services and the college’s health plan administrators, places an illegal burden on the school’s religious freedom.
There are very technical and complex points being made in this argument, but allow me to oversimplify: Wheaton thinks that filling out the government form is tantamount to inserting a Copper-7 IUD into the uterus of an employee.
So until Wheaton’s case against the accommodation is decided, the Supreme Court said Thursday, Wheaton can ignore the accommodation that the Supreme Court endorsed on Monday. Got that?
Justice Sonia Sotomayor, in a scathing dissent, said there was no legal justification for giving the college permission to ignore the provisions of the accommodation. And while she didn’t exactly call her male colleagues a bunch of liars, she said their decision “undermines confidence in this institution.” After all, the court had just endorsed the accommodation in Hobby Lobby. “Those who are bound by our decisions usually can take us at our word,” she wrote. “Not so today.”
Women’s rights advocates, disappointed by the Hobby Lobby ruling, were baffled by the Wheaton decision.
“It’s a very strange turnaround,” said Marcia Greenberger, co-president of the National Women’s Law Center. “There is absolutely no legal justification for providing this injunction, especially since the majority of the court, in justifying its position just days before, had talked about the satisfactory nature of the ‘accommodation.’ ”
ACLU Deputy Legal Director Louise Melling was also surprised: “It’s quite ironic, let’s just say, to hold out the accommodation as the least restrictive means [to achieve the government’s goal of contraceptive coverage for women], and in less than a week issue an injunction to prevent enforcement of that accommodation.”
For a lot of women, the Supreme Court has just made obtaining birth control a kind of a Catch-22.
The hurdles to preventing unwanted pregnancies just got a little higher. But that's not a problem for our all-male conservative Supreme Court majority.
I'll try not to baffle you if you follow me on Twitter: @robinabcarian