Nel's New Day

July 8, 2014

SCOTUS Makes Hobby Lobby Worse

Crazy is the best word to describe last week. During the same week the country celebrated the Fourth of July with noisy fireworks and smoky barbecue grills, five U.S. Supreme Court justices signed away religious rights for a majority of people in the United States. The fourth day of July is an annual commemoration of the signing of the U.S. Constitution, a document that delineates the freedoms of people in the nation. The First Amendment separates church and state, declaring that people have freedom of religion among other rights.

On June 30—last week—the five justices gave corporations religious rights by ruling in favor of a privately-held corporation called Hobby Lobby. The decision gives the owners the ability to determine how doctors can provide medical attention to the company’s women employees. Using their personal religious beliefs, Hobby Lobby’s owners, the Green family, objected to two medications, Plan B and Ella, and two different contraceptive IUDs because they have the mistaken belief that these produce abortions.

In fact, an abortion is the termination of a pregnancy. These medications and one IUD actually stop ovulation. There is no death of an embryo because there is no embryo. Trillions of fertilized eggs don’t turn into pregnancies because this requires a women’s uterus. The American College of Obstetricians and Gynecologists filed an amicus brief that stated, “There is no scientific evidence that emergency contraceptives available in the United States and approved by the FDA affect an existing pregnancy.” The other IUD keeps the fertilized egg from being implanted in the uterus.

The five conservative justices were very clear, however, that this information didn’t matter because it was Hobby Lobby’s “belief” that was at stake. Thus the justices ruled that fact has no value in its decision

The Green family opposed only these four contraceptive methods, but the day after the initial ruling, the five justices gave the Greens another gift. A week ago today, the five justices said the ruling covered all 20 forms of contraception protected through the Affordable Care Act (ACA).

That’s not all that Hobby Lobby got from the five justices. The Greens also objected to insurance plans covering “related education and counseling” for contraception. It’s possible that the ruling blocks women from consulting with their doctors about birth control. Although this seems impossible, Kansas already has a state law controlling the information that doctors can give female patients. This would be the beginning of federal control over doctor-patient discussions.

If insurance doesn’t pay for doctors’ appointments that discuss contraception, then the general visit might not be covered by health insurance if women discuss contraception. Without a prescription, women cannot get contraception—which isn’t just a few dollars and certainly not available at the 7-Eleven where Cardinal Timothy Dolan thinks women get their contraceptive medication.

The Supreme Court can make all women in the United States subject to the same Global Gag Rule for nongovernmental organizations receiving U.S. assistance. They cannot use separately obtained non-U.S. funds to inform the public or educate their government on the need to make safe abortion available, provide legal abortion services, or provide advice on where to get an abortion. This restriction on freedom of speech harms the health and lives of women who have less access to family planning services and does not reduce abortion.

Whether the Supreme Court imposed a “U.S. Gag Rule” on women is not clear yet. Their ruling is that Hobby Lobby cannot be forced to pay for medical treatments they find “religiously intolerable.” It’s possible Hobby Lobby may decide that a woman talking to her doctor about contraception is “religiously intolerable.” They may decide that their workers’ receiving contraception from the government is also “religiously intolerable.” Other church-based organizations such as Notre Dame have refused federal accommodation and continue with their lawsuits.

The five justices weren’t finished after that Tuesday decision. On Thursday, they told Wheaton College, a Catholic-based school in Illinois, that they didn’t even have to fill out paperwork to be relieved from providing contraception through its insurance. Without any paperwork from their employer, the school’s female workers may not be able to obtain any contraception from the government, an arrangement that the government had made with religious institutions who didn’t want to provide contraception.

The ruling is not final. It grants an injunction while the Wheaton case moves through lower courts. The basis, however, is that employers’ anti-contraception rights trump workers’ First Amendment freedom of religion rights. Employees lose.

In its original Hobby Lobby decision, the five judges ruled that workers could go to the government. Then they took away that ability to get government relief. The Obama administration had accommodated religiously-identified non-profits by arranging with insurance companies to directly pay coverage instead of through the religious groups. All those organizations had to do was to complete a form certifying the objection. At least 122 non-profits have sued, purporting that signing the opt-out form violates their religious liberty.

Joined by Justices Elena Kagan and Ruth Ginsburg, Justice Sonia Sotomayor wrote a dissent to the Wheaton ruling:

“Those who are bound by our decisions usually believe they can take us at our word. Not so today.

“After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position.”

In short, the dissent states that the justices who provided the first Hobby Lobby ruling are dishonest. The highest court in the land that relies on the trust of the public has now lost that trust. Sotomayor wrote that the court’s action “undermines confidence in this institution” and that the public has reason to mistrust the highest level of legal arbiters in the nation. Hobby Lobby may be the tipping point of evidence that the majority of SCOTUS conservative activist justices are so ideological that they cannot be trusted. This follows earlier unconstitutional decisions:

A Rasmussen survey found that 61 percent of the public believe that the justices’ decisions are based on their personal ideological agendas rather than facts and constitutional issues. Last week, they seemed to determine the finding based on their ideology and then flipped the decision for another ruling, again following ideology.

On Monday, Justice Samuel Alito, speaking for the five-member conservative majority, said the ACA’s contraception policy created a “substantial burden” on religious corporations and officials must rely on the “least restrictive” approach to achieving policymakers’ goal. He cited the paperwork compromise process as the “least restrictive” path. Alito said that this policy “achieves all of the government’s aims while providing greater respect for religious liberty.”

Three days later, he joined the other conservative justices in changing their minds about completing the paperwork by granting Wheaton the extremely rare emergency relief, ruling against their Monday ruling. As Dahlia Lithwick and Sonja West put it, “Overnight, the cure has become the disease. Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer.”

The justices may be gone until October, but the outrage remains.  Sens. Patty Murray (D-WA) and Mark Udall (D-CO) plan to introduce a bill this week to override the Hobby Lobby decision. It would stop companies from discriminating against female employees in any health coverage guaranteed under federal law. The measure will also state that no federal law, including the Religious Freedom Restoration Act (RFRA) that SCOTUS used to justify its decision, permits employers to refuse to comply with the health care law’s preventive services requirement. Chief Justice John Roberts suggested during Hobby Lobby’s oral arguments that Congress could exempt the ACA from RFRA. Three representatives will introduce an identical bill in the House. The bills will provide the same exemption for religious nonprofits and houses of worship that the ACA currently has.

I realize that the GOP will block the bills in any way that they can, but at least they will have to declare their opposition to women’s rights.

1 Comment »

  1. This is infuriating and blatantly discriminatory. The only possible good thing about this ruling is that it may weaken Repubs in the next election.


    Comment by Robin — July 9, 2014 @ 1:14 PM | Reply

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