Since the SCOTUS Hobby Lobby Decision on June 30:
As with just about any case that makes it to the SCOTUS, we will need time to sort out how this decision will play out in the day-to-day reality of Americans’ lives. All SCOTUS decisions have consequences, intended or not; and to those who want the furor around this case to go away by insisting that it “really isn’t that bad” or overreaching, or that it’s some sort of “narrow decision” that will only apply to very, very specific circumstances….this is not how such court decisions work. While the executive and legislative bodies of our government exist to craft laws, the judicial body exists to interpret those laws and set precedents that guide future laws. That really is their job – to interpret laws made by the legislative and executive branches in the context of state and national constitutions that guarantee citizen rights. And since all judges use past court decisions when arriving at current court decisions, it is disingenuous (at best) to suggest a certain court decision will never be used again in future decisions (the closest the SCOTUS has come to a direct assertion of “non-precedent” is in the Bush v Gore decision that decided the 2000 US presidential election; and even that assertion has been called “illegitimate”). It’s how courts in general, and the SCOTUS in particular, work.
In the case of the Hobby Lobby decision, however, we haven’t even had to wait that long to see some anticipated (by women’s rights advocates) consequences come to pass. The SCOTUS ruled in favor of Hobby Lobby, Inc’s right to refuse insurance coverage of 4 types of contraceptives they say provide abortions and therefore violate their religious beliefs (that those contraceptives cause abortions is not something medical professionals agree with) on Monday June 30. Women’s rights advocates who saw this as an infringement on the rights of women as workers to enjoy the same employment compensation, and right to comprehensive health care benefits, were immediately told to calm down, because it’s “just 4 types we’re talking about”. However, on Tuesday, July 01, the SCOTUS ordered lower courts to re-hear any court cases of employers objecting to covering all types of contraception. So, strike one.
Despite the insistence again and again that this ruling “only affects the ladies, and just those who insist on having promiscuous (heterosexual) sex lives” (paraphrase, of course; and insulting that this argument somehow makes the ruling okay), on Wednesday, July 02, a group of federal contractors sent a letter to the White House asking to be exempt from the recent executive order forbidding federal contractors from discriminating against LGBT employees in their hiring process in light of the Hobby Lobby decision. Per their letter: “Without a robust religious exemption, this expansion of hiring rights will come at an unreasonable cost to the common good, national unity, and religious freedom.” For expanding the Hobby Lobby decision beyond the original, “narrow intent”, strike two. And for making an opening for religious freedom to be defined solely by the religious organization asking for the exemption (what exactly are the “unreasonable costs to the common good” that will result from hiring LGBT employees?) without asking for any kind of proof of these assertions, strike three.
And if that isn’t enough strikes so soon after the decision – and a rebuke to the flippant SCOTUS majority and women’s rights opponents suggestion that the “federal government can find another way to ensure contraceptive access to women” – on Thursday, July 03, the SCOTUS issued a decision that even making a non-profit religious organization fill out the birth control exemption request form is an undue burden on religious freedom, and therefore, they shouldn’t have to do it. Which undoubtedly will make it a bit more difficult for the federal government to keep track of which women aren’t getting the coverage via their employers. Strike four.
That certainly was fast. And considering this case could be seen as a preliminary to the broader efforts of corporations to restrict the rights of all workers, we certainly have not seen the last of this “narrow decision” being invoked as precedent. And that may have been the intent of the decision in the first place, an opening of the door. But even if it wasn’t, the SCOTUS sets precedent – that’s its job. These subsequent decisions we’ve seen in the last week are not the result of “suggestions” made by Justice Ginsburg’s dissent. Frankly, those accusations are just more misogyny coming out of a misogynistic society that brought us to this decision in the first place.
And while we await more precedents, it’s worth noting the harm the Hobby Lobby decision does right now, which is restrict the access of poor women working at these companies to comprehensive reproductive health care that is a part of their compensation. It is not lost on us that this fight – which essentially is saying that your employer still has a right dictate what you do with the compensation they provide – is being fought on the backs of those with historically little political clout. While there may be religious objections to covering Viagra or vasectomies, they rarely seem to provoke the heated debate that contraception designed for women does; and they certainly don’t seem to invoke a movement to ban those things completely, they way some would with women’s birth control.
(A note on this decision and NC women’s access to employer-covered birth control: in 2000, the NCGA passed a law, well before the ACA, that “requires that insurers that provide plans that cover prescription drugs or devices also cover contraceptives”. That doesn’t appear like it will change merely based on this decision. Whether or not it gives the NCGA ideas, however, remains to be seen).
Tara Romano, President, NCWU