The Supreme Court Isn't Waging a War on Women in Hobby Lobby

By Emma Green

Responses to the Supreme Court's ruling in Burwell v. Hobby Lobby are a study in contradictions.  It's "a landmark victory for religious liberty" that gives bosses "license to harm their female employees in the name of religion." A "struggle for the First Amendment has been vindicated," while the law is being "used as a sword to thwart anti-discrimination laws." All the rhetoric sets up the same dichotomy: religious liberty vs. women's reproductive rights. How did two kinds of freedom come to be seen as mutually exclusive?

Here are the basics of the case (insofar as it's possible to call anything about a Supreme Court decision "basic"). In 2012, Hobby Lobby, a crafts company owned and operated by a religious couple named David and Barbara Green, contested the so-called "contraception mandate" in the Affordable Care Act. This part of the law initially required organizations of a certain size to cover FDA-approved contraceptives in their insurance plans. The Greens, along with a Mennonite family that owns a company called Conestoga Wood, said that four of the listed contraceptives violated their religious beliefs because they might possibly prevent a fertilized egg from implanting in a woman's uterus. Even if they weren't taking the drugs themselves, they said, they felt morally culpable for paying for their employees to take them.

The question was whether this was a legitimate claim under the 1993 Religious Freedom Restoration Act: Did the mandate "substantially" burden these companies' ability to practice their religion, and did the government have an alternative way to accomplish its goal of providing contraceptive access? For that matter, could companies even have religious-freedom rights?

The Court said "yes" to all three of those questions, but in doing so, it has created a lot of ire.

To some extent, this is like any other issue that gets split into two false sides: All the links above are statements from groups with a vested interest in making their particular viewpoints seem like facts. That's to be expected: It's the job of PR people to spin issues to their advantage. 

But in this case, PR mirrors real life—or at least the rhetoric of the Supreme Court. The decision in the case clocks in at 49 pages authored by Justice Samuel Alito, followed by a 35-page dissent from Justice Ruth Bader Ginsburg (plus four pages of concurring commentary by Justices Anthony Kennedy, Stephen Breyer, and Elena Kagan). Throughout, Alito and Ginsburg write about the complaint in entirely different terms: Where he sees religious liberty, she sees a violation of women's rights.

This is clearest in the statements each justice chose to open with. Toward the end of his summary of the Court's decision, Alito puts on his well-worn moral philosopher's hat, questioning how deeply the justices can get involved in theological questions. "The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy," he writes. "Namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another." This is a reference to one of the main questions in the case: whether having to pay for contraceptives actually counts as a substantial burden on someone's religious beliefs.

Ginsburg, on the other hand, quotes a 1992 case that involved Planned Parenthood: "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.” She later takes issue with Alito's ventures into moral philosophy, saying it "is as wrongheaded as can be. In no way does the dissent 'tell the plaintiffs that their beliefs are flawed.'" The question is about women's rights, or "whether accommodating [a religious freedom] claim risks depriving others of rights accorded them by the laws of the United States."

The United States is so open, so tolerant, so free because no person may be restricted in exercising her religion.

But as John J. Dilulio Jr., the first director of the White House Office of Faith-Based Initiatives, writes over at Brookings, "Love it or loathe it, the Hobby Lobby decision is limited in scope." It's about how the Religious Freedom Restoration Act applies to this particular objection from Hobby Lobby and other "closely held" companies, or businesses that are mostly owned by a small group of people who also happen to run them. And the Court went out of its way to clarify that their ruling does not apply to other possible medical objections, like blood transfusions and vaccinations. 

Most importantly, this ruling won't necessarily prevent women who work at Hobby Lobby, Conestoga Wood, or other religious companies from accessing birth control through their insurance plans. In the majority opinion, Alito specifically suggests that the government could use the same kind of exemption it has set up for non-profit organizations: Companies would have to sign a short document certifying that they object to providing birth-control coverage, and then the government would take over coverage from there. Several separate court cases about this accommodation are still pending in lower courts, but the point is that the Court doesn't think bosses should get to deny affordable birth-control access to their employees—they just shouldn't necessarily have to pay for it.

Ginsburg doesn't buy this. The ruling, she says, "would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure." She also pointed out that the list of medications included drugs that address issues beyond pregnancy, including pelvic pain, cancers, and menstrual disorders.

But Anthony Kennedy, in an opinion concurring with the majority, calls her out on this. Of all the justices who wrote in this case, he seems to find the best way of balancing these two sides:

Among the reasons the United States is  so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or  her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.

In other words, nobody gets to be "right" in this case. No one's religious beliefs can trample someone else's health needs, and even if the government can't force closely held private companies to pay for contraceptives, these companies can't stop their employees from being on birth control. Hobby Lobby is a balancing act, not a bludgeon—and certainly not an attack on women's rights.

This article available online at:

http://www.theatlantic.com/national/archive/2014/06/the-supreme-court-isnt-waging-a-war-on-women-in-i-hobby-lobby-i/373717/