The National Women’s Law Center has a great, fierce analysis of the biases of the Evil Five in the Hobby Lobby ruling on its blog. Summary: Y U ignore women, Evil Five?
The majority opinion in Hobby Lobby erases women from the picture altogether. In a decision that is squarely about women’s health and equality, the male justices in the majority refuse to acknowledge the centrality of women. And in evidencing greater concern for protecting corporations from discrimination than in protecting women from discrimination, the majority opinion creates a hierarchy of discrimination where women are at the bottom (if they even merit consideration at all).
To begin with, Justice Alito’s opinion for the majority barely mentions women. As the Washington Post reported, the opinion uses the word “women” or “woman” a mere 13 times in 49 pages. Closer reading of the majority decision makes clear that seven of those mentions were either because the majority was refuting Justice Ginsburg (and her use of “women”); summarizing the government’s position (and its use of “women”) or describing the birth control coverage requirement (a simple recitation of fact).
Well you see it wasn’t about us, it was about the owners of Hobby Lobby, and the owners of corporations in general (let’s face it, most of them aren’t women), and the bosses of religions (also nearly all men), and the boss of the whole thing (definitely male). Women are peripheral to almost everything. They’re tiny little creatures way off in the corner somewhere, who don’t count.
That leaves precisely six instances in which the majority — on its own — mentioned the word “women.” There are two possible explanations. Both are troubling.
One is that the majority purposely, as a legal and literary strategy, left out “women” — the better to hide the actual women whose rights are at stake behind asserted concerns about religious freedom. Alternately, it was unintentional, but nevertheless the result of an unacknowledged but deep-seated and culturally-reinforced worldview that just does not take women into account.
It could also have been a combination of both, I think. The strategy of leaving them out would have seemed more obviously absurd if it weren’t already so normal to leave women out of everything as it is (and then look around brightly and observe that it’s all more of a guy thing).
I’m very tired of the deep-seated and culturally-reinforced worldview that just does not take women into account.
The justices in the majority are very concerned about discrimination, but only when it appears to harm for-profit corporations. The majority opinion paints a picture of for-profit corporations that are trying to operate according to religious beliefs, but are threatened by discrimination at every turn. Focusing on the need to protect these corporations allows the majority to ignore the other harm that is at issue in the case: discrimination against women.
If birth control does not really promote public health, then it doesn’t matter if taking the benefit from these female employees means more unintended pregnancies. If requiring insurance plans to cover birth control isn’t acknowledged to close gender gaps in health care, then it doesn’t matter if only female employees lose a health insurance benefit that they earned with their work. If gender equality is not a real result of birth control access, then there is no need to consider whether women are forced to give up educational or career opportunities. If birth control is not directly linked to a woman’s health and the course of her life, then sex discrimination deserves no attention by the majority. And so it gets none.
The bottom line for the majority is that when discrimination against women is tied to their reproductive health, it is different from other forms of discrimination and consequently less important. In this case, it is certainly less important to the majority than protecting for-profit corporations — which the majority decided, for the first time, can exercise religion — from asserted religious discrimination. That justifies the decision’s final conclusion: it is not just acceptable but legally required that the religious beliefs of bosses are allowed to trump a woman’s health and access to the health care she needs.
It’s a bit like rushing to comfort the guy who bruised his knuckles punching a woman in the face, while ignoring the woman on the ground with blood pouring out of her nose.