Where Will the Slippery Slope of ‘Hobby Lobby’ End?
There’s no telling how far religious exemptions will go under Justice Alito’s ruling.
By Katha Pollitt
Facts are stubborn things, as John Adams famously said. Unless, that
is, you’re talking about religion.
Then facts don’t seem to matter at
all: right you are if you think you are. The
Hobby Lobby case
was billed as a test of religious freedom versus the power of the state:
Did the Religious Freedom Restoration Act (RFRA) mean that David Green,
the evangelical Christian CEO of a chain of crafts stores, could be
exempt from providing coverage for the full range of contraceptives for
his employees under the Affordable Care Act?
Green balked at including
Plan B, Ella (another form of emergency contraception) and two kinds of
IUD, because, he claimed, they caused “abortion” by preventing the
implantation of a fertilized egg.
The Court’s 5-to-4 decision—which featured all three women justices
ruling for the workers, and all five Catholic men ruling for the
corporation—was wrong in many ways.
But the thing I really don’t
understand is why it didn’t matter that preventing implantation is not
“abortion,” according to the accepted medical definition of the term.
And even if it was, Plan B, Ella and the IUDs don’t work that way, with
the possible exception of one form of IUD when inserted as emergency
contraception.
As an amicus brief from a long list of prestigious
medical organizations and researchers laid out at length, studies show
that emergency contraception and the IUD prevent
fertilization,
not implantation.
They are not “abortifacients,” even under the
anti-choicers’ peculiar definition of abortion. (Green is actually more
moderate than some anti-choicers, who include hormonal contraception,
aka
“baby pesticide,” as abortion.)
Why doesn’t it matter that there is
no
scientific evidence for Green’s position?
When did Jesus become an
Ob/Gyn?
For five members of the Supreme Court to accept a canard that happens
to accord with their oft-expressed anti-choice views suggests that
their sympathies from the outset lay with the anti-choice CEO and not
his women employees.
What about those workers’ religious freedom?
The
decision means that the government cannot compel a CEO to violate his
religious beliefs, but a
CEO can violate the religious beliefs of his
workers.
How is that fair?
But then, it was a bad day all around at the
Court for women and workers.
In
Harris v. Quinn, the same five
justices ruled that home health aides, even when paid by Medicaid, are
only “quasi public” employees, which means that those who refuse to join
a union don’t have to share in the costs, even though all workers will
benefit from union victories.
Ninety percent of these aides are women,
whose ability to bargain collectively will now be significantly
weakened.
Where will it all end?
“It is not for us to say that their religious
beliefs are mistaken or insubstantial,” Justice Alito writes.
There is
no limit to religious requirements and restrictions in our land of a
thousand “faiths.”
Several companies have already filed cases that
object to all forms of contraception, not just the four singled out by
Hobby Lobby, and the day after the decision the Court clarified that its
ruling applied to all methods.
And why draw the line on legal
exemptions at religion anyway?
Plenty of foolish parents now risk their
children’s lives and the public’s health because they reject vaccines on
“philosophical” grounds.
What happens when Aristotle, the CEO, claims
that birth control—or psychotherapy or organ transplants—goes against
his “philosophy”?
Justice Alito’s opinion is canny. Slippery slope?
No problem: “our
decision in these cases is concerned solely with the contraceptive
mandate.
Our decision should not be understood to hold that an
insurance-coverage mandate must necessarily fall if it conflicts with an
employer’s religious beliefs.”
He specifically mentions vaccines, blood
transfusions and protection from racial discrimination as being in no
danger, but he gives no argument about why
Hobby Lobby’s logic
would never apply.
In other words, birth control is just different. Of
course, it’s about women.
Anyone could need a blood transfusion, after
all, even Alito himself.
And it’s about powerful Christian
denominations, too, to which this Court slavishly defers—for example, in
the recent decision finding no discrimination in the Christian prayers
that routinely open town council meetings in Greece, New York.
As Ruth Bader Ginsburg argues in her stirring dissent, there’s
“little doubt that RFRA claims will proliferate, for the Court’s
expansive notion of corporate personhood—combined with its other errors
in construing RFRA—invites for-profit entities to seek religion-based
exemptions from regulations they deem offensive to their faith.”
The
reason it’s unlikely the Supreme Court would uphold a religious
exemption for vaccinations or blood transfusions is not something
intrinsic to those claims; it’s simply that Alito finds them weird.
Birth control is banned by the Bible?
Sure.
Blood transfusions are
banned by the Bible?
Don’t be silly.
For now.
We have no idea, really,
how far the Court might be willing to extend RFRA.
Could a CEO refuse to
pay childbirth costs for unmarried women?
Could he pay married men more
because that’s what the Lord wants?
(Actually, he’s probably already
doing that.)
But here’s my prediction: the day a religious exemption
burdens by so much as a mouse’s whisker the right of men to protect
their own bodies from unwanted, well, anything, is the day the Supreme
Court Five discover that religion is not so deserving of deference after
all.
It would be nice to think this ruling, which applies only to “closely
held corporations,” will affect few women.
Unfortunately, these are not
just sweet little family businesses. As Ginsburg noted, some are
huge—Dell, Cargill, Mars. Altogether, they employ some 52 percent of the
workforce.
True, most either offer contraception coverage already or
are exempt because they employ fewer than fifty workers, but who’s to
say what the future holds?
Companies change hands, CEOs find Jesus—or
Allah or Thoth or L. Ron Hubbard.
It’s not reassuring that a CEO’s views
of a fertilized egg get deference today, but workers’ contraceptive
coverage is left to the fates.
