US Supreme Court Decision Fails Women: Ginsburg’s Dissent

July 2, 2014

Hobby Lobby doesn’t have to offer contraceptives to their employees. If you’re mad, you’re not alone. Read what Justice Ruth Bader Ginsburg had to say.

The Supreme Court has ruled in favor of Hobby Lobby. In doing so, they’ve ruled against women. There is a lot more that should be said about this, but after many attempts to gather my thoughts, I’ve found that I’m unable to wade through my overwhelming feelings of utter shock and disappointment.

In a 5-4 decision, the US Supreme court ruled on Monday that “closely-held corporations” (those ruled by a few) are legally entitled to refuse to cover contraception for religious reasons in the health plans they offer employees.

Some Background

The ruling was on Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties v. Burwell. The Burwell named in these cases refers to Sylvia Mathews Burwell, the newly confirmed Secretary of Health and Human Services. These cases challenged the provision in the Affordable Care Act (ACA) that requires for-profit companies to cover contraception in their health plans. The for-profit companies previously argued that this provision imposes a substantial burden on their ability to exercise religious freedom. The Greens, a Christian family that owns Hobby Lobby, and the Hahns, a Mennonite family that owns Conestoga Wood Specialties, claim that certain kinds of birth control-types that the Affordable Care Act would cover-are the same as abortion. Of note is that they only objected to 4 of the 20 FDA-approved contraceptives. Yet the Court’s decision lets them off the hook for all contraception.

The Dissent

Justice Ruth Bader Ginsburg vehemently disagreed with the decision of the five Justices who voted against mandatory contraception coverage and delivered a 35-page dissent regarding that decision. Throughout her dissent, Ginsburg refers to the Religious Freedom Restoration Act (RFRA), which she believed had been enacted by Congress "to serve a far less radical purpose" than the court had interpreted it to. "And mindful of the havoc the Court’s judgment can introduce," she wrote, "I dissent."

She does so spectacularly. What follows are quotes or paraphrases from Justice Ginsburg’s dissent, which can be found among these pages of the Court’s syllabus for these cases (look for it around page 60):

"The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

“The exemption … would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.”

“Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. ... To reiterate, ‘for-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].’”

“The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”

“The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ ‘belie[f] that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.’ … But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, distinguishes between ‘factual allegations that [plaintiffs’] beliefs are sincere and of a religious nature,’ which a court must accept as true, and the ‘legal conclusion ... that [plaintiffs’] religious exercise is substantially burdened,’ an inquiry the court must undertake.”

“Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But ‘[n]o individual decision by an employee and her physician-be it to use contraception, treat an infection, or have a hip replaced-is in any meaningful sense [her employer’s] decision or action.’”

“Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.”

“That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corporations exclude intrauterine devices (IUDs), devices significantly more effective, and significantly more expensive than other contraceptive methods. Moreover, the Court’s reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contraceptives.” … “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage; that almost one-third of women would change their contraceptive method if costs were not a factor; and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be.”

“The statutory scheme of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here. Further, … allowing a religion-based exemption to a commercial employer would ‘operat[e] to impose the employer’s religious faith on the employees.’ No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door, at least in the absence of directions from the Legislature or Administration to do so.”

“Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs,” Ginsburg wrote. She then asks whether RFRA, according to the logic of the assentings’ votes, would require exemptions in the following past cases:

- Owner of a restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration.

- Born-again Christians who owned closely held, for-profit health clubs believed that the Bible proscribed hiring or retaining an ‘individua[l] living with but not married to a person of the opposite sex.’

- A young, single woman working without her father’s consent or a married woman working without her husband’s consent,

- Any person ‘antagonistic to the Bible,’ including ‘fornicators and homosexuals’

- For-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners).

If they would not require exemptions, Ginsburg asks “how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that ‘courts must not presume to determine . . . the plausibility of a religious claim’?”

“Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? According to counsel for Hobby Lobby, ‘each one of these cases . . . would have to be evaluated on its own . . . apply[ing] the compelling interest - least restrictive alternative test.’ Not much help there for the lower courts bound by today’s decision. The Court, however, sees nothing to worry about.”

“There is an overriding interest, I believe, in keeping the courts ‘out of the business of evaluating the relative merits of differing religious claims.’ Indeed, approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’ The Court, I fear, has ventured into a minefield.”