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.