The Supreme Court’s 5-4 decision in Burwell v. Hobby Lobby is being called narrow by some analysts, but that’s true only in that Hobby Lobby got everything it wanted and nothing more. In her blistering dissent Justice Ruth Bader Ginsburg correctly called it “a decision of startling breadth.”
The question before the Court was twofold: Do corporations enjoy the same protections for religious liberty as individuals do? And if so, does providing contraceptive coverage in an employee health plan – as required under the Affordable Care Act – violate that liberty?
Justice Samuel Alito, writing for all of the Republican-appointed justices, answered “yes” to both questions.
Giving for-profit corporations exemption from the law, he said, “protects the religious liberty of the humans who own and control them.” He said “any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law.”
That religious exercise was being burdened by employee birth control coverage, Alito said — especially when the government could just provide birth control directly to women, or require insurers to provide it directly to employees.
The majority brought no such passion to considering the real-life impact on employees — in this case, women.
That was where Justice Ruth Bader Ginsburg stepped in, furiously. Joined in full by Justice Sonia Sotomayor and in part by Justices Stephen Breyer and Elena Kagan, Ginsburg pointed out that the ruling was radical because “exemptions had never been granted to any entity operating in ‘the commercial, profit-making world.’”
That’s partly because corporations enjoy special protections that insulate them from individual liability. But according to the court’s majority, corporations get to have it both ways.
“One might ask why the separation [between business and owner] should hold only when it serves the interest of those who control the corporation,” Ginsburg wrote acidly.
As it stands, Ginsburg pointed out, the burden now falls on the employees of companies whose employers object to subsidizing their contraception.
“It bears note … that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage,” she wrote, adding, “Working for Hobby Lobby … should not deprive employees of the preventive care available to workers at the shop next door.”
In all, she said, the public health rationale for the contraceptive coverage requirement, as laid out in an Institute of Medicine report, is “concrete, specific, and demonstrated by a wealth of empirical evidence.”
The idea that the decision is narrow — that it only applies to closely-held, sincerely-religious corporations and isn’t a license to discriminate, and that it would only apply to women’s health – came from the majority in response to the dissent’s fierce criticisms. But as the majority itself noted, no big, publicly-traded corporation has emerged to make such a claim. The Court doesn’t have to rule on a question it isn’t asked. Now that the court has recognized that corporations have religious exercise, the door has been opened. All it takes is for the right plaintiff to walk through it.
In any case, saying the decision is narrow because “only” women’s health care is affected reflects a value judgment too, where the practical realities of accessing health care is subsumed to the corporate owner’s will. According to the Guttmacher institute, “some 62% of all women of reproductive age are currently using a contraceptive method,” and 99% have ever used one. And as the panel of medical experts that decided that contraception would be part of the ACA’s minimum coverage requirements saw, cost is a barrier. All this is not exactly a marginal concern.
The government may well find a way to fill the gaps in coverage – the White House suggested as much on Monday – but the majority’s utter indifference to even considering women’s lives, beyond shunting the responsibility to the government, speaks volumes.
Ginsburg recalled an earlier decision of the Court, Planned Parenthood v. Casey, in which women’s healthcare was at stake, in that case abortion. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” That decision was co-authored by Justice Sandra Day O’Connor, who was replaced by Justice Alito, and by Justice Kennedy, who today took Hobby Lobby’s side. That was then. This is now.
Irin Carmon