Never mind what the women think


Getting sick of Hobby Lobby? You know how it is – there are some subjects I’ll just keep poking at for days.

Marcia Greenberger, co-president of the National Women’s Law Center, has a post at Scotus blog. The NWLC filed an amicus brief in support of the government.

Taking as a given the companies’ sincere religious beliefs that certain forms of contraceptives cause abortions (even though scientifically and medically inaccurate as outlined here), the majority seriously errs by then also taking as a given the companies’ claim that the insurance requirement for their employees imposes a substantial burden.  According to the majority, the burden is substantial because the companies say it is.  The majority undertakes no legal analysis of this burden claim…

Which is the nature of religious claims, isn’t it, and part of what makes them so frustrating and so inappropriate to impose on other people. With secular claims, reasons tend to be forthcoming, and if they’re not people are mostly free to reject them. But with religion it’s just a matter of faith, so what’s the point of undertaking any kind of analysis? But that’s all the more reason not to let the claims prevail.

The majority assumes a compelling interest, thereby not addressing the importance of birth control for women’s health and the course of their life

The next major legal issue in the case also gets short shrift from the majority.  Justice Alito states that he will “assume” that the government’s interest in providing contraceptive coverage to women is compelling.  As Justice Ginsburg notes, “Perhaps the gravity of the interests at stake has led the Court to assume . . . that the compelling interest criterion is met in these cases.”

By assuming rather than addressing the compelling interest, however, the majority avoids an analysis of the impact of birth control on women’s health and lives.  It allows the majority to avoid any mention of how birth control reduces unintended pregnancy and improves women’s health and the health of any children they might have.  It allows the majority to avoid discussion of how birth control treats certain medical conditions women may have and is directly linked to women’s social and economic opportunities.  (Our brief to the Court  explains these benefits in much greater detail.)  As a result, the opinion dealt only with the perspective of the company and not the impact on women.

Because it’s a Catholic perspective and they’re all Catholics (and men) themselves? Because it’s a religious perspective, and they think religious perspectives should get extra deference? Both? Probably both.

Both Justice Alito’s decision and Justice Kennedy’s concurrence emphasize that this decision is limited in its scope, that other health care services such as immunizations or blood transfusions need not be implicated, and that other non-discrimination laws are not necessarily open to the same challenge.  It is cold comfort to women to be assured that only their right to essential contraceptive care will be undermined.  But it is also of little assurance that the majority provides such skimpy legal analysis to bolster the limited nature of its decision.  The short shrift the majority gives to the legal analysis of this assertion underscores the decision’s doctrinal weakness and makes this decision even more of a bitter pill for women to swallow.

The more I read the bitterer the pill gets.

Comments

  1. RJW says

    “… the companies’ sincere religious beliefs”

    What? If I ever meet a living breathing company, I’ll enquire as to its health, religious affiliations etc.

    Totally and utterly grotesque, companies are ‘legal persons’ not persons.

  2. Pteryxx says

    By assuming rather than addressing the compelling interest, however, the majority avoids an analysis of the impact of birth control on women’s health and lives. It allows the majority to avoid any mention of how birth control reduces unintended pregnancy and improves women’s health and the health of any children they might have. It allows the majority to avoid discussion of how birth control treats certain medical conditions women may have and is directly linked to women’s social and economic opportunities.

    Reminds me of how doctors under the Catholic ERBs aren’t allowed to recommend abortion, refer for abortion, or even acknowledge abortion exists, even when it’s the lifesaving standard of care. Perhaps the Catholic ethics have already been put into effect by the majority justices, such that a frank and realistic discussion of contraception would offend their religious sensibilities, and thus they cannot write any decision that makes mention of such facts.

  3. says

    It’s a proverbial Gordian Knot. They are creating ever more convoluted and self-contradicting claims and “judgements” to justify and excuse religious imposition on the US populace.

    And like the Gordian Knot, it can be easily cut apart…IF those in power had the spine to do it (i.e. Obama).

  4. badgersdaughter says

    A few months after Hurricane Katrina struck, I picked up a copy of The Women’s Book of Choices, thinking that the information in it would be useful in a time when women’s healthcare was unavailable due to a similar disaster (I lived quite nearby, in terms of hurricane risk).

    I no longer live in that city, but gee, I’m glad I have that book. Not because I expect to use it myself, but because it has the information that they’re trying to deny us the knowledge of. Not because I feel medically qualified (I so don’t), but because you can’t just stand there when someone is in desperate need.

    Last night I had a nightmare in which I picked up a badly wounded kitten someone was pushing around with their foot, and people I approached for help were saying things like, “We can’t get involved, we have our own problems” and “we don’t know enough about cats”. I remember thinking that if I only knew even the basics of cat medicine, I wouldn’t have to run around desperately seeking help for a dying animal nobody else cared about. I know it seems strange but I have that same feeling when I think about women who are losing their right to reproductive health.

  5. StevoR : Free West Papua, free Tibet, let the Chagossians return! says

    That pill should be spat out.

    Its bad medicine.

    Also Hobby lobby verdict = utter crap.

    You employ someone, they work for you, you do the right thing by them and keep your religious bigotry the hell away from their basic human rights including the right to the healthcare safety net. No exceptions.

    (Leastaways there should not be.)

  6. Anna Gaw says

    I heard recently that corporations are “weaponizing the first amendment” and this is a clear case of that. They are using free speech as a reason to fight against the minimum wage in Seattle (it will cut into advertising dollars!). They are not only giving first amendment rights to corporations, they are giving them superior rights over ordinary people. The corporation’s right to religion and speech supersedes your own, as clearly indicated by the Hobby Lobby case. Prior to this ridiculous ruling, your religious freedom stopped at my body. But now for corporations, it no longer stops. They have also changed the definition of employment compensation. If health coverage is a part of your compensation, they just gave corporations more power to control you. Just hold on to your hat, we will start seeing a slew of cases where corporations and businesses will start claiming all kinds of religious freedom issues in how they treat employees, how they compensate employees and how they are regulated. And with the current make-up of the Supreme Court, there is no end in sight to just how far this group will go.

  7. Kimpatsu says

    In Japan, there is no such thing as a “contraceptive pill” for much the same reasons as the Catholic Church: shame on women who have sex if not for procreation. However, doctors all over the country routinely supply “hormonal regulation pills” to aid with the menstrual cycle (in Japan, this claimed reason vs. the real reason are called “tatemae” (facade) vs. “honne” (real reason). Can any US lawyers please explain why women trapped by the shitty Hobby Lobby ruling couldn’t ask their GP for the same thing?

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