Everyone sing along on the chorus, “The Court, I fear, has ventured into a minefield.”
Just a day after the U.S. Supreme Court ruled on June 30 that “closely held” companies such as Hobby Lobby can refuse birth control to women based on religious grounds, the main points in Justice Ruth Bader Ginsburg’s dissent inspired a song.
Ginsburg didn’t write about “slut-shaming geezers,” but singer-songwriter Jonathan Mann drew many other lines directly from the justice’s 35-page dissent, which points to all the dangers in Justice Samuel Alito’s majority opinion in Burwell v. Hobby Lobby and Conestoga Wood v. Burwell. Ginsburg called it a decision “of startling breadth.”
Alito said Hobby Lobby, an Oklahoma-based company with a chain of 500 arts-and-crafts stores, and Conestoga Wood Specialties, a furniture company in Pennsylvania, cannot be forced to comply with the Affordable Care Act mandate that health care plans, at no extra charge, cover contraception for women as part of a range of preventative benefits.
Both companies offer employee health programs that include birth control, but the owners objected on religious grounds to covering two intrauterine devices and two emergency contraceptive pills, Plan B and Ella.
The question for the court: Whether a for-profit corporation has religious rights under federal law or the Constitution.
The court, which in several recent high-profile cases has ruled in favor of corporate personhood, ruled that closely held companies — those with a few people owning more than 50 percent — can hold religious views.
Alito, writing for a majority that included Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy, said the decision only applies to contraceptives and “should not be misunderstood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs.”
Also, Alito said he crafted a “narrow” decision that didn’t decide the case on Hobby Lobby’s First Amendment arguments but rather under the Religious Freedom Restoration Act of 1993.
“Our family is overjoyed by the Supreme Court’s decision,” said Hobby Lobby co-founder Barbara Green. She added, “The court’s decision is a victory, not just for our family business, but for all who seek to live out their faith.”
The court’s four liberal justices — Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer — dissented.
Ginsburg said the decision to extend protection to for-profit corporations is “bound to have untoward effects” and she observed that closely held corporations can be any size, large or small, public or private. Cargill is considered a closely held company. So is Koch Industries.
“Little doubt that RFRA claims will proliferate, for the court’s expansive notion of corporate personhood — combined with its errors in construing RFRA — invites for-profit entities to seek religious-based exemptions from regulations they deem offensive to their faith,” Ginsburg wrote.
She also said the Obama administration had proven that the contraceptive coverage in the Affordable Care Act furthers the compelling interests in public health and women’s well-being. “To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders and pelvic pain.”
The morning after releasing the Hobby Lobby decision, the court confirmed its decision and left in place lower court rulings in favor of Catholic-owned businesses objecting to covering all 20 methods of government-approved contraception mandated in the Affordable Care Act.
And everywhere there was talk of war.
Republicans declared a battle victory in their war against Obamacare. “Today’s decision is a victory for religious freedom and another defeat for an administration that has repeatedly crossed constitutional lines in pursuit of its big government objectives,” said House Speaker John Boehner of Ohio.
Christian-right leaders declared a victory in the war on religious liberties. “These families’ stand for freedom benefits the many faith-based businesses faced with the same awful choice of deciding between their faith and livelihood. It also vindicates a higher principle, showing that government must tread carefully when it seeks to impose policies contrary to our most cherished rights,” said Focus on the Family president Jim Daly.
Civil liberties advocates said the court had assaulted religious freedoms. “For the first time, the highest court in the country has said that business owners can use their religious beliefs to deny employees a benefit that they are guaranteed by law,” said Louise Melling of the American Civil Liberties Union. “Religious freedom is a fundamental right, but that freedom does not include the right to impose beliefs on others.”
LGBT civil rights leaders raised concerns about what the ruling means in the fights for marriage equality and against workplace discrimination. “It is more important than ever that states and Congress enact strong, clear nondiscrimination protections for LGBT people,” said Jennifer C. Pizer, of senior attorney with Lambda Legal.
Labor leaders said the decision was part of the war on workers.
And NARAL president Ilyse Hogue said the decision “from five male justices is a direct attack on women and our fundamental rights. This ruling goes out of its way to declare that discrimination against women isn’t discrimination. …Today it’s birth control, tomorrow it could be any personal medical decision, from starting a family to getting life-saving vaccinations or blood transfusions.”
U.S. Rep. Mark Pocan, D-Madison, observed that 90 percent of businesses in the United States qualify as closely held. “Thus, the Supreme Court has limited the personal health-care decisions of women across the United States. The right of women to make their own choices about their health care is fundamental and deserves absolute protection.”
A week after the Supreme Court ruling, the minefield was littered with fundraiser appeals from varied causes, and politicians and allies were organizing for skirmishes at the polls in November, in the courts, in Congress and at the White House.
“It is now the job of Congress and the administration to ensure women affected by this decision have equal access to contraceptive coverage options without interference by their employer,” said U.S. Sen. Tammy Baldwin, D-Wis. “Every woman should have access to comprehensive, affordable health coverage and should be able to make the health care decisions that work for her and her family.”
And the chorus to “Ginsburg’s Dissent” goes: “One thing’s clear/This fight isn’t over/We gotta stand together/For what we know is right.”
Out of enda?
A week after the Hobby Lobby ruling, several leading civil rights groups withdrew support for the Employment Non-Discrimination Act because of the religious exemptions it contains.
ENDA would ban workplace bias based on sexual orientation and gender identity.
The ACLU, Lambda Legal, National Gay and Lesbian Task Force and more withdrew support.