The Honorable Ruth Bader Ginsburg (Credit: AP/Matt Sayles)
On Monday morning, the Supreme Court finally released its much-anticipated decision on the Hobby Lobby case, a decision that lived up to expectations by being split along ideological lines (the court’s five conservatives overruling its four liberals) and severely weakening Obamacare’s birth control mandate.
Also living up to expectations? Liberal Justice Ruth Bader Ginsburg’s blistering dissent, which excoriated the court’s majority for its ruling, describing it as a “radical” decision “of startling breadth” that would have chaotic and major unintended consequences. You can read her dissent in full here (it starts at page 60) but we’ve also compiled some of its best, key parts.
Ginsburg opens with a bang, immediately describing the decision as one that will have sweeping consequences:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.
She frames the decision as one that denies women access to healthcare, rather than as one that upholds religious liberty:
The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.
In a similar vein, she rejects that the birth control mandate should be seen as an act of government coercion, describing it instead as one that provides women with the ability to make their own choice:
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.
She affirms her belief that religious organizations and for-profit corporations serve fundamentally different purposes and have fundamentally different rights (and throws some shade at the majority in the process):
Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. … 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.
She claims that the majority has actually undermined the very principle, religious freedom, it claimed in its ruling to have upheld:
Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution's] Establishment Clause was designed to preclude.
In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
Rand Paul, John Boehner, Ted Cruz (Credit: AP/Ed Reinke/J. Scott Applewhite/Reuters/Jonathan Ernst)
Because the world is an awful place, the Supreme Court’s decision regarding contraception coverage mandated by the Affordable Care Act lands on the deadline day of second-quarter political fundraising. This is terrible news for anyone who aims to keep their email inboxes and Twitter timelines neat and tidy and rid of shameless solicitations.
On the other hand, it offers a great opportunity to see how each political party will try to spin the decision in Burwell v. Hobby Lobby Stores, Inc., in which a conservative SCOTUS majority ruled that “closely held” corporations can refuse to offer health insurance plans covering certain forms of contraception under religious freedom grounds. And don’t expect the responses to be symmetrical: It’s in Democrats’ political interests to play this up as a so-called social issue on culture war grounds. Republicans, meanwhile, will try to shy away from the “social” factor and argue that the ruling is another data point against President Obama’s unconstitutional executive tyranny.
Consider this somewhat (very) gimmicky tweet from Senate Majority Leader Harry Reid’s team …
… and compare it with this response from the speaker of the House, John Boehner, who issuing the presidentfor utilizing the power of the executive branch (emphasis ours):
“Today’s decision is a victory for religious freedom and another defeat for an administration that has repeatedly crossed constitutional lines in pursuit of its Big Government objectives. The mandate overturned today would have required for-profit companies to choose between violating their constitutionally-protected faith or paying crippling fines, which would have forced them to lay off employees or close their doors.
“The plaintiffs in the HHS Mandate cases before the Court based their claims on the Religious Freedom Restoration Act (RFRA), which passed Congress nearly unanimously in 1993. RFRA is a critical check on federal power and enjoys support across the ideological spectrum.
“The president’s health care law remains an unworkable mess and a drag on our economy. We must repeal it and enact better solutions that start with lowering Americans’ health care costs.”
There’s a big difference in approach to these responses, most clearly summed up by one word: “women.” Reid’s response mentions “women,” which makes sense, because today’s ruling limits women’s access to certain contraceptives. Boehner’s response does not mention “women,” one of humanity’s major genders. This is just about the Constitution ‘n’ Big Government ‘n’ stuff.
The irony of today’s ruling is that while it’s a terrible ruling, it doesn’t help the Republican Party as its candidates pivot from primaries to general elections. Ever since the GOP took over the House of Representatives and various statehouses in the 2010 elections, and proceeded to act on its “jobs agenda” by going all-out to limit access to women’s heathcare, the party has been pummeled in a key demographic: unmarried women. In 2012, Barack Obama won approximately two-thirds of votes by unmarried women, according to exit polls. In 2013′s Virginia gubernatorial election, Republicans nominated a staunch conservative culture warrior like Ken Cuccinelli, who did so poorly among unmarried women that he managed to lose tosleazeball fundraiser Terry McAuliffe.
YES, YES, unmarried women care about lots of things beyond birth control! But the battle over access to women’s healthcare, with Rush Limbaugh calling Sandra Fluke a “slut” being its avatar, has proven to have remarkable political resonance in turning out the vote against “social conservatives.” That’s why Harry Reid is calling the ruling what it is — the Supreme Court placing a limit on “women’s access to health care” — while John Boehner pops off about “an administration that has repeatedly crossed constitutional lines in pursuit of its Big Government objectives.”
As fall rolls around, we should expect to hear a lot from Democrats about this ruling and little from Republicans about it — cynical as that may be, considering Democratic policies lost and Republican policies won. Not that it’s clear how Senate Democrats could respond to today’s ruling. Sadly, Harry Reid and co. can’t do much about Sam Alito having terrible opinions.
Supreme Court Justices Clarence Thomas and Antonin Scalia (Credit: AP/Pablo Martinez Monsivais/Jeff Malet Photography, maletphoto.com/photo collage by Salon)
In a 5-4 decision, the Supreme Court ruled Monday that Hobby Lobby can ignore federal law and deny its employees comprehensive health insurance because of its “sincerely held religious beliefs.” Analysis of the case has so far called this a limited ruling because it only applies to closely held corporations and “only” impacts contraceptive coverage. But this framing completely ignores the fact that more than 90 percent of corporations in the United States are closely held, and that the court just effectively ruled that it’s fine for employers to discriminate against half of the labor force. There’s nothing limited about it. As Justice Ruth Bader Ginsburg noted in her powerful dissent, far from being narrow in its ruling, the high court just “ventured into a minefield.”
So what does the decision actually mean? In the immediate term, it means that women who work at Hobby Lobby and Conestoga Wood Specialties are paying for health coverage (insurance is part of their compensation package, it’s not some gift bestowed upon them by their bosses) that their employers have decided that they can’t have. That’s really what this comes down to in the most blunt terms imaginable. The religious owners of these companies havemedically inaccurate ideas about contraception and abortion, and they now get to impose those ideas on the the people who work for them. In the majority opinion, five male justices argued that the Department of Health and Human Services can fill in the gaps in coverage created by this ruling by including for-profit companies in the accommodation system created for religious nonprofits and other explicitly faith-based organizations. Women’s health, it seems, has become someone else’s problem.
This is certainly bad news for the women who work at both of these places, but it’s bad news for the rest of us, too. The ruling sends a strong message that women’s health and women’s rights — as individuals and employees — do not matter as much as so-called religious liberty. It also shows once again that medically inaccurate ideas about healthcare can dictate the terms of a debate and ultimately win the day. Writing for the majority, Justice Samuel Alito argued that contesting Hobby Lobby’s claim that contraception is the same thing as abortion — an idea that has been refuted time and again by medical providers and associations — “in effect tells the plaintiffs that their beliefs are flawed.”
And as Ginsburg alluded to in her dissent, the decision opens the door to other sweeping forms of discrimination. While Hobby Lobby based its claim in its apparent objection to four forms of emergency contraception (contraception that the company covered without issue prior to the new healthcare law), other companies challenging the requirement object to all forms of contraception. Those beliefs are just as sincerely held, and just as dangerous to women’s health. The legal precedent now tips in their favor.
The opinion also raises the question of whose religious beliefs matter. Conservatives are hailing this as a victory for freedom of religion, but what about the religious employees at Hobby Lobby who don’t share the views of the Green family? The Greens’ profoundly unscientific and extreme views about contraception are not even universally accepted among Christians. Where’s their religious liberty in this? And for the women whose religious liberty is freedom from religion? Where are they in this opinion? “The Court puts claims of corporations over those of its employees and allows a corporation’s owners to override the Federal rights of its employees, many of whom have a different set of religious beliefs,” Ginsburg wrote in her dissent.
And this is one of the ways that the framing of this case has been off from the start. The lawyers for Hobby Lobby presented the legal challenge as though it were the religious lobby versus the reproductive rights lobby, and many in the media accepted these terms. But religious people use contraception — including emergency contraception. People of faith also have a major stake in keeping employers from imposing religious views on employees. The fault lines in the case have never been as clean as some would like you to believe.
To sum it up, five male justices ruled that thousands of female employees should rightfully be subjected to the whims of their employers. That women can be denied a benefit that they already pay for and is guaranteed by federal law. That contraception is not essential healthcare. That corporations can pray. That the corporate veil can be manipulated to suit the needs of the corporation. That bosses can cynically choose à la carte what laws they want to comply with and which laws they do not. Each specific finding opens a door to a new form of discrimination and unprecedented corporate power. If you think this ruling won’t affect you, you haven’t been paying attention. If you think these corporations are going to stop at birth control, you’re kidding yourself.
Supreme Court Justices Antonin Scalia, Samuel Alito, John Roberts, Clarence Thomas, Anthony Kennedy(Credit: AP/Pablo Martinez Monsivais)
Although Harris v. Quinn stood in the shadows of the Hobby Lobby case this session, both decisions dealt with women’s rights, since the home healthcare workers affected by it are disproportionately low-paid women. The Supreme Court’s decision in the case Monday made life harder for unions representing some of the lowest-paid workers in one of the fastest-unionizing sectors, but left most of public sector collective bargaining law intact.
At issue was an Illinois decision to let home care workers who are paid by clients with public funds be represented by a union. Workers doing such jobs in hospitals and other institutional settings have union representation, but with a growing consensus that care at home is more humane and less expensive, the number of home care jobs is projected to jump 70 percent in the next decade. Individuals working in private homes had no way to unionize, and no larger “employer” with whom to negotiate pay and working conditions, so a growing number of states have made a public agency their “employer of record.”
As is traditional in the public sector, the home care workers who didn’t want to join the union were required to pay a smaller portion of dues anyway, since their wages and working conditions would improve thanks to agreements negotiated by the union. (In fact, since the workers unionized, hourly wages climbed from under $5 in 2003 to $13 this year.)
Plaintiff Pamela Harris, who cares for her disabled son at home, sued to stop the union from deducting dues. Describing herself as a “mom” fighting to stop “the threat of unionization in a family home” on Fox News and elsewhere, she insisted “not a penny of Medicaid funding intended to help provide care for disabled men and women should be taken away and given to the union.” While some home care workers are family members, most are not, and disability rights groups along with advocates for the elderly have supported the union, arguing that better wages reduce turnover and noting that unions have also funded classes to help members better care for clients.
The plutocrat cartel known as the National Right to Work Committee, backed by the Kochs, the Waltons and other conservative anti-union funders, joined Harris. But where her case started out targeting only her category of workers in Illinois, the NRWC Legal Defense Foundation blew it up to try to get the court to overturn the landmark 1967 Abood v. Detroit Board of Education, which held that public employees who don’t want to join a union must still pay representation fees, as long as the fees don’t pay for political activity.
That bid failed; Justice Samuel Alito said the court’s decision left Abood intact, but limited its reach “to full-fledged state employees” as opposed to “partial public employees” like Harris. He was joined in the majority opinion by Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Anthony Kennedy. But Alito left the door open to a future challenge to public sector unions, calling the “Abood court’s analysis…questionable on several grounds” and “anomalous.” As of late afternoon Monday, unions still weren’t sure how far beyond the specifics of Pamela Harris’s complaint the ruling would apply.
Writing in dissent, Justice Elena Kagan noted that the court declined to overturn Abood. “The good news out of this case is clear: The majority declined that radical request. The Court did not, as the petitioners wanted, deprive every state and local government, in the management of their employees and programs, of the tool that many have thought necessary and appropriate to make collective bargaining work. The bad news is just as simple: The majority robbed Illinois of that choice in administering its in-home care program.”
Unions like SEIU and AFSCME decried the decision, but so did advocates for the elderly and disabled. “Today’s decision hurts millions of low-wage workers and the people they serve, often the most frail and vulnerable in America,” said Richard Fiesta, executive director of the Alliance for Retired Americans.
On Fox News, Pamela Harris applauded the court’s ruling. “It’s exactly what we wanted,” she said. Noting that the court declined to apply its decision to all public employee unions, she parted company from her friends at NRWC. “That was never our objective,” she said.
Some court observers see the conservative majority moving toward Abood, but slowly. “The court’s opinion in Harris is very much in the mold of opinions by the conservative Roberts Court majority: Issue a relatively narrow ruling on the conservative side, but lay the groundwork for a broader conservative ruling in the future,” Rick Hasen, a law professor at the University of California, Irvine, told Mother Jones. ”In Harris, the court sets itself down the path of overrulingAbood but does not take that step yet.”
Monday’s “Hobby Lobby” decision was just the latest challenge to the Affordable Care Act. Details on the 5-4 decision and other challenges that could — if successful — have even deeper implications.
Video CreditBy Carrie Halperin Publish Dateon June 30, 2014. Image CreditImage by Doug Mills/The New York Times
WASHINGTON — The Supreme Court ruled on Monday that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violated a federal law protecting religious freedom. It was, a dissent said, “a decision of startling breadth.”
The 5-to-4 ruling, which applied to two companies owned by Christian families, opened the door to many challenges from corporations over laws that they claim violate their religious liberty.
The decision, issued on the last day of the term, reflected what appears to be a key characteristic of the court under Chief Justice John G. Roberts Jr. — an inclination toward nominally incremental rulings with vast potential for great change.
Justice Samuel A. Alito Jr., writing for the majority, emphasized the ruling’s limited scope. For starters, he said, the court ruled only that a federal religious-freedom law applied to “closely held” for-profit corporations run on religious principles. Even those corporations, he said, were unlikely to prevail if they objected to complying with other laws on religious grounds.
But Justice Ruth Bader Ginsburg’s dissent sounded an alarm. She attacked the majority opinion as a radical overhaul of corporate rights, one she said could apply to all corporations and to countless laws.
The contraceptive coverage requirement was challenged by two corporations whose owners say they try to run their businesses on Christian principles: Hobby Lobby, a chain of craft stores, and Conestoga Wood Specialties, which makes wood cabinets. The requirement has also been challenged in 50 other cases, according to the Becket Fund for Religious Liberty, which represented Hobby Lobby.
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Protesters advocated for access to birth control outside the Supreme Court on Monday.CreditImage by Doug Mills/The New York Times
Justice Alito said the requirement that the two companies provide contraception coverage imposed a substantial burden on their religious liberty. Hobby Lobby, he said, could face annual fines of $475 million if it failed to comply.
Justice Alito said he accepted for the sake of argument that the government had a compelling interest in making sure women have access to contraception. But he said there were ways of doing that without violating the companies’ religious rights.
The government could pay for the coverage, he said. Or it could employ the accommodation already in use for certain nonprofit religious organizations, one requiring insurance companies to provide the coverage. The majority did not go so far as to endorse the accommodation.
Chief Justice Roberts and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined the majority opinion.
Justice Ginsburg, joined on this point by Justice Sonia Sotomayor, said the court had for the first time extended religious-freedom protections to “the commercial, profit-making world.”
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)?
“The court’s expansive notion of corporate personhood,” Justice Ginsburg wrote, “invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.”
She added that the contraception coverage requirement was vital to women’s health and reproductive freedom. Justices Stephen G. Breyer and Elena Kagan joined almost all of her dissent, but they said there was no need to take a position on whether corporations may bring claims under the religious liberty law.
The two sides differed on the sweep of the ruling.
“Although the court attempts to cabin its language to closely held corporations,” Justice Ginsburg wrote, “its logic extends to corporations of any size, public or private.” She added that corporations could now object to “health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work.”
But Justice Alito said that “it seems unlikely” that publicly held “corporate giants” would make religious liberty claims. He added that he did not expect to see “a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions.” Racial discrimination, he said, could not “be cloaked as religious practice to escape legal sanction.”
Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.
Justice Alito did not mention laws barring discrimination based on sexual orientation. Justice Ginsburg said all sorts of antidiscrimination laws may be at risk.
Josh Earnest, the White House press secretary, said that the court’s decision “jeopardizes the health of women employed by these companies” and added that “women should make personal health care decisions for themselves, rather than their bosses deciding for them.” Mr. Earnest urged Congress to find ways to make all contraceptives available to the companies affected.
Lori Windham, a lawyer for Hobby Lobby, said, “The Supreme Court recognized that Americans do not lose their religious freedom when they run a family business.”
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Activists reacted Monday to the Hobby Lobby ruling outside of the Supreme Court.CreditImage by Doug Mills/The New York Times
The health care law and related regulations require many employers to provide female workers with comprehensive insurance coverage for a variety of methods of contraception. The companies objected to covering intrauterine devices and so-called morning-after pills, saying they were akin to abortion. Many scientists disagree.
No one has disputed the sincerity of their religious beliefs,” Justice Alito wrote. The dissenters agreed.
The companies said they had no objection to some forms of contraception, including condoms, diaphragms, sponges, several kinds of birth control pills and sterilization surgery. Justice Ginsburg wrote that other companies may object to all contraception, and that the ruling would seem to allow them to opt out of any contraception coverage.
A federal judge has estimated that a third of Americans are not subject to the requirement that their employers provide coverage for contraceptives. Small employers need not offer health coverage at all; religious employers like churches are exempt; religiously affiliated groups may claim an exemption; and some insurance plans that had not previously offered the coverage are grandfathered in.
In its briefs in the two cases, Burwell v. Hobby Lobby Stores, No. 13-354, and Conestoga Wood Specialties v. Burwell, No. 13-356, the administration said that for-profit corporations like Hobby Lobby and Conestoga Wood must comply with the law or face fines.
The companies challenged the coverage requirement under the Religious Freedom Restoration Act of 1993.
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Outside the Supreme Court, groups and individuals on both sides of the Hobby Lobby case lingered after the ruling on Monday.CreditImage by Doug Mills/The New York Times
Some scholars said the companies would be better off financially if they dropped insurance coverage entirely, and so could not be said to face a substantial burden on their religious freedom. But Justice Alito said the companies also had religious reasons for providing general health insurance. He added that dropping it could place the companies at “a competitive disadvantage.”
The administration argued that requiring insurance plans to include comprehensive coverage for contraception promotes public health and ensures that “women have equal access to health care services.” The government’s briefs added that doctors, rather than employers, should decide which form of contraception is best.
A supporting brief from the Guttmacher Institute, a research and policy group, said that many women cannot afford the most effective means of birth control and that the coverage requirement will reduce unintended pregnancies and abortions. Justice Ginsburg cited the brief in her dissent.
The decision’s acknowledgment of corporations’ religious liberty rights was reminiscent of Citizens United v. Federal Election Commission, a 2010 ruling that affirmed the free speech rights of corporations. Justice Alito explained why corporations should sometimes be regarded as persons. “A corporation is simply a form of organization used by human beings to achieve desired ends,” he wrote. “When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”
Justice Ginsburg said the commercial nature of for-profit corporations made a difference.
“The court forgets that religious organizations exist to serve a community of believers,” she wrote. “For-profit corporations do not fit that bill.”
The Honorable Ruth Bader Ginsburg (Credit: AP/Matt Sayles)
