Why the Hobby Lobby decision is a stunning setback for women’s rights

Opinion, NakedLaw, News, Politics

Fundamentalist employers can opt out of paying for health insurance for contraceptive coverage for their workers, the U.S. Supreme Court said last week in the Hobby Lobby decision. Defensively, the five Catholic male Supreme Court justices in the majority took some time to insist that their ruling is narrow. Don’t believe it. The decision is a radical departure from prior law with monumental implications.

New rule #1: Your religion can curtail my birth control options

The U.S. is the most religious and most conservative first-world nation, and believers have tried to opt out of our laws for centuries. For the most part, courts haven’t allowed it. May Christian Scientists forego lifesaving medical treatment for their children? No. May Native Americans ingest illegal peyote as part of their religious ceremonies? No. May the Amish refuse to pay Social Security taxes that violate their sincere religious beliefs? No.

The simple general rule has always been that you are free to practice Protestantism or Wicca or Zoroastrianism or any belief of your choice, provided your religious practice does not harm others. You may swing your arm just until it reaches my shoulder, as the old legal epigram goes. Nor may you impose your religion on me, thank you very much. And whether you’re Hindu or Muslim or Baha’i, you must follow general U.S. laws, including paying a wide array of taxes and fees, and more recently, buying certain kinds of insurance, like auto and health insurance.

Probably every American, religious or not, can point to services provided by moneys we are required to pay that we despise on moral or religious grounds. For my part, as an ethical vegan, government subsidies to hideously cruel factory farms tops the list of most vile uses of my tax dollars. Can I opt out? No, just as a religious Jew can’t say no to his tax contribution to the pork industry and a Quaker can’t hold back tax payments for wars. We can lobby to change the laws. But once they’re passed, we must all follow them. We can’t have 300 million different legal exceptions for the 300 million Americans who’d like to pick and choose which laws comport with our personal beliefs.

The Hobby Lobby decision’s first radical move is in its wide departure from these core American principles. For the first time in the Court’s history, it ruled that a law requiring one to merely vicariously enable another to take an action contrary to one’s religious beliefs violates religious freedom.

Hobby Lobby’s owners have always been free to express their extremist religious views (nine in ten Americans believe birth control is morally acceptable) in their words or conduct. They have a constitutional right to say that IUDs and morning after pills – the birth control methods they object to – are abortifacients, even though that is scientifically false. According to the FDA, these methods prevent fertilization, rather than preventing implantation of a fertilized egg in the uterus, as fundamentalists claim.

The wealthy business owners behind Hobby Lobby have the free speech right to espouse an illogical course of action – foregoing birth control – that actually increases abortion, the evil they oppose. They are free to preach that birth control is a sin, even though it’s never mentioned in the Bible. But they wanted more: they wanted, and got, a ruling that they didn’t have to pay for employee health insurance, as required now by the Affordable Care Act, because contraceptive coverage was part of what was required.

To be fair, in its 95-page ruling, the Court relied heavily on a law passed by Congress twenty years ago, the Religious Freedom Restoration Act (RFRA), which codified an expansive view of religious freedom. The good news here is that what Congress enacts Congress can repeal. We don’t need a constitutional amendment to reverse Hobby Lobby, just legislative action to stop the madness.

Let’s take a moment to remember what was entirely forgotten in the Hobby Lobby majority opinion: that birth control is vital to women’s health and equality, even our very lives. The United States has one of the highest rates of unplanned pregnancies in the developed world, in part because we have not had universal coverage of birth control as is the case in much of Europe, which – shocker – has far fewer unwanted pregnancies. Unintended pregnancy rates for poor American women are high and have shot up in the last two decades, as the prices for contraception for those without health coverage make it unattainable.

Most American women spend about three decades trying to avoid unplanned pregnancies (puberty to menopause minus the few years they seek pregnancy, are pregnant or postpartum). An IUD – a safe, highly effective, convenient form of birth control that is the number one choice for women in Europe – can cost a month’s salary for a U.S. minimum wage worker and is used by only 8 percent of U.S. women. Let’s get real. If it’s not paid for by her health insurance, she’s not getting it, which is why the Affordable Care Act requires insurers to include it.

The morning after pill, the other form of contraception Hobby Lobby’s owners find sinful, is commonly prescribed after sexual assaults. Forcing a woman or girl to carry her rapist’s baby to term is morally repulsive to most Americans of all religions. Hobby Lobby would deny coverage for that small mercy.

In wide swaths of America, abortion is so unavailable we may as well be living in the nineteenth century. 87 percent of U.S. counties lack any abortion provider. For many poor American women, an unplanned pregnancy means a surprise baby, full stop.

All medically approved forms of birth control are far safer for women’s health than childbirth, as is abortion, a safe and simple medical procedure when performed by a doctor. Childbirth, in contrast, can be dangerous for poor American women. Most of us are unaware of the shocking fact that a U.S. woman’s chance of dying in childbirth is high and on the rise. We rank 60th in the world in maternal mortality rates, worse than China with its hundreds of millions of rural poor. Nearly 800 American moms died in childbirth in 2013, double the rate of Saudi Arabia and Canada, triple the rate of the U.K.

After giving birth, in stark contrast to women elsewhere in the developed world, American moms do not have publicly financed day care to turn to, nor even legally required paid maternity leave. While a baby is a life changing event for women everywhere, in the U.S. parents are left to fend for themselves, and overwhelmingly it’s women whose careers are derailed. Single moms plunge into poverty after the birth of a child, scrambling to pay for day care which averages nearly $12,000 annually. Women who give birth to unintended babies face significantly higher rates of depression and anxiety and their babies are more likely to be preemies with low birth weight, facing substantial medical problems.

All of which is why you’d think that in 2014 we could unite behind supporting free or low cost contraceptive coverage. Birth control pioneer Margaret Sanger understood a century ago that birth control was a core women’s rights issue:

“No woman can call herself free who does not own and control her body. No woman can call herself free until she can choose consciously whether she will or will not be a mother.”

Since 1965, the Supreme Court has found that access to contraception, because it involves the important decision whether or not to become a parent, is a fundamental constitutional right. But no matter: Hobby Lobby shrugs away that line of cases.

Women’s right of access to vital contraceptive medications and devices were outweighed in the court’s view by the religious freedom of extremists to avoid the absurdly tenuous link between their payment of some dollars to an insurance company that might pay other dollars to a pharmacy or doctor that then provides birth control pills or devices to their worker in her off duty hours.

Of course, insurance companies don’t earmark their dollars –  money rolls in, money rolls out. Dollars are fungible. No one could track Hobby Lobby’s premiums to Emily Employee’s IUD. Hobby Lobby’s money paid to Big Health Insurance Company after this decision, for coverage without contraception, goes into the insurance company’s general fund, out of which comes insurance payments for whatever is needed, including contraception for all the other companies who include that coverage for their employees.

In the name of religious freedom, thousands of Hobby Lobby employees and their dependents lose access to safe, effective, important forms of birth control, so that Hobby Lobby’s owners can rest easy that their money isn’t paying for contraception. Except – oops — they are still funding the same insurance companies who do provide contraception to others. So, allowing Hobby Lobby to opt out to assuage its religious conscience plays along with a fiction, and is a groundbreaking prioritization of hypertechnical and nonsensical religious freedom over the rights of real women.

New rule #2: For-profit companies are persons entitled to religious freedom

Equally disturbing is the second radical aspect of the Hobby Lobby ruling: establishing for the first time in U.S. history a right to religious freedom not for flesh-and-blood humans (the kind who get pregnant, for example), but for corporations.

Because remember, corporations are people too now, since Citizens United v. Federal Election Commission, McCutcheon v. Federal Election Commission and a now-growing body of dangerous Supreme Court precedent extending rights to these powerful entities – rights previously reserved for actual people.

Corporations are legal fictions that provide business owners protection for their personal assets. That’s why Hobby Lobby, which employs thousands of people, is a corporation. For-profit corporations are legally required to do everything they can to maximize the profits of the company, their raison d’etre. Board members who act out of other motives are breaching their fiduciary duties and can be removed on this ground alone.

Corporations exist for decent reasons. I myself operate my law firm as an LLC to protect myself. But let’s not pretend that these artificial beings are people. They are in it for the money. Explicitly. Solely. That businesspeople may do good things with their money is nice but irrelevant.

As ridiculous as the holding was in Citizens United – corporations get to make virtually unlimited campaign contributions because they’re people expressing free speech! – it’s even more insane in the Hobby Lobby birth control context. Corporations don’t vote, and as they are soulless, they don’t go to church, mosque or synagogue. Allowing corporations to opt out of general laws based on religious extremism is downright scary.

Can Chik-fil-A claim an exemption from employment discrimination laws and fire LGBT employees? Can a company refuse to hire those who don’t, like its owners, keep the Sabbath holy? May Jehovah’s witnesses ask that their corporation not pay for blood transfusions? May Christian Scientists opt out of health insurance premiums that cover vaccinations?

For now, the majority says no, insisting that its ruling applies “only” to contraceptives (as if birth control was a frill, a luxury). But as Justice Ruth Bader Ginsburg argues in her powerful dissent, its reasoning is broad enough to give ground to advocates for these positions, who are surely writing their legal briefs as you read this.

Even if the ruling was limited to birth control, where does that end? May Hobby Lobby fire an employee who uses money from her paycheck to buy an IUD? Refuse to hire women of childbearing age altogether to avoid the possibility that Hobby Lobby wages will buy Plan B? Make employees sign a pledge that they’ll spend their wages in accordance with fundamentalist principles? Under the Court’s reasoning, which bends over backwards to protect Hobby Lobby from any conceivable use of its dollars from going through any channels that end with birth control, why wouldn’t these be next?

The Hobby Lobby decision misses entirely an important reason why for-profit companies should not have religious rights: because they are far more powerful than their employees. Having represented employees against employers for nearly three decades, I can tell you it is a rare, brave worker who sues her company. Most put up with violations of their rights for months or years, afraid to make waves and risk losing their paycheck.

Many employers, emboldened by Hobby Lobby, will now impose their religious beliefs or practices on their workers, few of whom will complain. Every company can now “get religion” and wreak havoc on laws that have traditionally been opposed by religious groups, like civil rights laws. Do not doubt that many will try.

Finally, don’t be fooled by those who say the ruling is narrow because it only applies to closely held corporations. According to Mother Jones, “this 5-4 ruling applies to about 90 percent of all American businesses, and 52 percent of America’s workforce.” So far 71 other companies filed cases similar to Hobby Lobby’s, with 46 still pending.

Lifelong women’s rights advocate Justice Ginsburg correctly called the Hobby Lobby opinion a “decision of startling breadth.” Ginsburg pointed out that enormous companies like candy maker Mars Inc., with its 70,000 employees, qualifies as closely held. Even family-owned Walmart Inc., with its 1.3 million employees, the third largest employer in the country, would qualify.

New rule #3: Merely signing a form on the subject of contraception violates a college’s religious freedom

If there was any doubt about the wide reach of Hobby Lobby, the far less publicized but even more absurdist Supreme Court case involving Wheaton College a few days later clarifies how far the Court will now go to exalt extremists over women.

Wheaton, a Protestant school already given a pass from paying for health insurance that includes birth control coverage – the Affordable Care Act exempts churches and nonprofits from the contraception mandate – objected to signing a form that expressed its religious objections to complying with the contraception mandate.

Why would filling out a two page statement like this be a problem? Because, the school argued, that would enable a third party, like the insurance company or the government, to step in and provide the contraceptive coverage, which is the point of the form. We’re not paying for birth control and no one else should either!

Astoundingly, the Supreme Court, at least for now, blessed that argument and issued a rare emergency temporary injunction, pending the Court’s full review of the case, sparing Wheaton from what the school claims is an intolerable infringement on religious freedom – putting pen to paper to disclose its position.

In Hobby Lobby, the majority insisted that women working for religious employers could still obtain contraceptive coverage through workarounds like this – no harm, no foul! A little extra work for women, perhaps, but they’ll still get their birth control! Everyone wins. 

By the end of the week, the Wheaton injunction demonstrated that this very workaround was considered to be so offensive to the delicate sensibilities of religious fundamentalists that it warranted extraordinary relief.  “Those who are bound by our decisions usually believe that they can take us at our word,” Justice Sonia Sotomayor wrote for the dissent. “Not so today.”

The monster of Hobby Lobby is already on the loose, busting out of the shackles its authors swore just a few days before would contain it. We so often worry about extremism abroad, but our own homegrown religious fundamentalists now have authorization from our highest court to deny women coverage for basic health services that profoundly affect our lives.

Historically, mainstream organized religion has opposed nearly every advance for women’s rights, from suffrage to workplace equality to birth control. Clearly, that fight continues now, well into the twenty-first century.

All three female justices vigorously dissented to the rulings in both the Hobby Lobby and Wheaton cases.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.

This article originally appeared in The Huffington Post on July 7, 2014 and is republished here with the author’s permission.

Photo credit: Dan Holm / Shutterstock.com