Blame It on the Patriarchy

By Emma Green

Ruth Bader Ginsburg is a woman who's easy to cheer for.

The Supreme Court justice stands at five-feet, one-inch tall.  She was the second woman ever appointed to America's highest bench, the first female Jew. She's a grandma.

And most importantly, she's a breathtakingly accomplished legal scholar who's not afraid to stand up to her largely conservative male peers. Even aside from her extremely eloquent, impassioned dissent against Monday's ruling on Burwell v. Hobby Lobby, it might be expected that those who oppose the decision would rally behind "the Notorious RBG" and her defense of women's reproductive rights—she's a living representation of intelligent, feminist defiance.

But there's an interesting and inevitable translation effect that happens when a Supreme Court justice's 35-page legal argument is condensed into gleeful listicles and 1000-word op-eds: Her words become symbolic battle cries in a larger culture war over contraception, women's bodies, and sexual freedom, rather than a carefully crafted argument in an intensely complicated legal case. In the aftermath of Hobby Lobby, caricatured camps of "liberals" and "conservatives" have obligingly taken their seats and raised their megaphones on either side of a well-worn, abstract debate: sexual freedom vs. sexual purity; women's health vs. religious rights; feminism vs. patriarchy.

It's possible this is just a fact of life of the public sphere, here and everywhere: Clear sides are drawn, rhetoric is deployed, specific details are smoothed over in favor of tallying ideological wins and losses. But Hobby Lobby is just part of the beginning, not the end, of a series of clashes between competing American values. Soon, President Obama will issue an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation, which some religious groups are concerned about. On Monday, the Supreme Court punted on the longstanding case against the Mt. Soledad cross, a 43-foot veterans memorial that stands on public land. And in the coming months, courts will handle further challenges to the Affordable Care Act's so-called contraception mandate: Religious non-profit groups like Notre Dame University and an order of nuns called the Little Sisters of the Poor are contesting the legal accommodation provided by the Obama administration, saying it still violates their religious beliefs.

Although each of these issues is nuanced in its own way, they hold similar rhetorical temptations: Sweeping historical narratives, including allusions to the Founding Fathers and the civil-rights era; roughly forged, diametrically opposed camps—in this case, those who oppose sexual freedom vs. those who support women's access to contraceptives; and, above all, the most classic, ill-used wedge in American discourse: religion vs. science. Inevitably, there will be glee and gloating, outrage and accusations, but this seems unnecessary and unhelpful. It's a sloppy way of dealing with the increasingly complex challenges of pluralism, which is bad for religious liberty and women's rights alike.

In discussions of Hobby Lobby, this has certainly been the case. "This is as close as it gets to a Southern Baptist dancing for joy," crowed Russell Moore, the head of the Ethics and Religious Liberty Commission of the Southern Baptist Convention. "The court reaffirmed a fundamental guarantee for religious liberty for all people."

In actuality, this case isn't so much about the what, but the how.

Batting for the other side: "My rights feel very much scare-quoted," wrote Ann Friedman in New York Magazine.  "The medical care that is critical to my ability to live and work—and, yeah, have consequence-free sex—was dismissed by the Supreme Court as relatively unimportant."

But as Justice Samuel Alito wrote in the decision on the case, affordable contraceptive access actually is a "compelling interest," both for the government and in the eyes of the Court. From his summary of the decision:

The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest.

In other words, this case isn't so much a matter of the what, but the how. According to the 1993 Religious Freedom Restoration Act, the government had to show that it had a compelling interesting in facilitating affordable birth-control access for women, but it also had to show that it had found the "least restrictive means" of doing so.

The Court's ruling was about the second part of the requirement; as Alito pointed out, the government itself has come up with an alternative way to facilitate birth-control access for women who work for religious non-profits. Groups have to sign a form saying they have a moral objection to contraception; from there, responsibility for administering and paying for birth control passes to a third-party administrator (like a separate insurer, for example). As the Obama administration sorts through the aftermath of the ruling, extending this accommodation may be one option it considers; although the Supreme Court declined to rule on the exemption specifically, Alito's mention of it seems to indicate that it would probably stand up to further religious-freedom objections, like those of Notre Dame and the Little Sisters of the Poor.

Winning this age-old battle seems less important than where the subtle lines of control and power are drawn.

But these details have been lumped into larger cultural narratives, particularly about women's rights. To some extent, this is understandable and important. One of the most powerful moments in Ginsburg's dissent is when she quotes Sandra Day O'Connor in a 1992 case involving 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 also cites a number of critical facts about contraceptive access: Women pay significantly more than men. The cost of an Intrauterine Device, or IUD, is roughly equal to a month of pay for a woman working at minimum wage. Almost a third of women would change their form of birth-control if cost weren't a factor. In these and other spots throughout her dissent, Ginsburg is undoubtedly correct: Affordable birth-control access is an important economic and public-health issue. 

But even if that's true, it's also true that certain religious groups regard some forms of contraceptives as morally wrong. This is where simplistic defenses involving the word "science" are misleading; even if the medical community has come to a rough consensus about the definition of conception, there's no way that this consensus can entirely displace or satisfy larger philosophical and religious convictions about the nature of life itself. At its deepest level, this controversy is about competing understandings about the "truth" of human existence. This kind of competition has always been part of life in America, and it probably always will be.

Given this, winning this age-old faux battle between science and faith seems less important than paying attention to where the subtle lines of control and power are drawn. Women need to be able to get birth control, the Supreme Court says, but the government can't make people violate their sincerely held beliefs in order for them to get it. On balance, the Court has decided, certain kinds of companies have the same kinds of religious-freedom rights as people do, and paying for birth control may legitimately violate someone's conscience. That doesn't make affordable birth control less important; it's just a layer of nuance affecting how women get it.

In an abstract sense, this case loosely touches on many of the issues that still haunt contemporary feminism: historical ways in which religious principles have been used to control women's bodies; sexual shaming and conservative sexuality morality; economic barriers to reproductive health for low-income women. But in a specific sense, it's an illustration of a relatively new, constructive challenge for feminism: mostly winning history, but occasionally ceding slightly to those who see the world in a different way.

This article available online at:

http://www.theatlantic.com/national/archive/2014/07/blame-it-on-the-patriarchy/373900/