Ginsburg's dissent in the Hobby Lobby contraceptive-coverage decision

[AdamSmith]

From Mother Jones.

The 8 Best Lines From Ginsburg's Dissent on the Hobby Lobby Contraception Decision

—By Dana Liebelson

| Mon Jun. 30, 2014 11:32 AM EDT

On Monday, Justice Ruth Bader Ginsburg penned a blistering dissent to the Supreme Court's 5-4 ruling that the government can't require certain employers to provide insurance coverage for methods of birth control and emergency contraception that conflict with their religious beliefs. Ginsburg wrote that her five male colleagues, "in a decision of startling breadth," would allow corporations to opt out of almost any law that they find "incompatible with their sincerely held religious beliefs."

More MoJo coverage of the Supreme Court's Hobby Lobby decision.

• Hobby Lobby's Hypocrisy: The Company's Retirement Plan Invests in Contraception Manufacturers
• Why the Decision Is the New Bush v. Gore
• How Obama Can Make Sure Hobby Lobby's Female Employees Are Covered
• The Supreme Court Chooses Religion Over Science
• Hobby Lobby Wasn't About Religious Freedom. It Was About Abortion.

Here are seven more key quotes from Ginsburg's dissent in Burwell v. Hobby Lobby:

• "The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers' beliefs access to contraceptive coverage"
• "Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community."
• "Any decision to use contraceptives made by a woman covered under Hobby Lobby's or Conestoga's plan will not be propelled by the Government, it will be the woman's autonomous choice, informed by the physician she consults."
• "It bears note in this regard that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage."
• "Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today's decision."
• "Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude."
• "The court, I fear, has ventured into a minefield."

You can read the full dissent here. (It starts on page 60.)

http://www.motherjones.com/politics/2014/06/best-lines-hobby-lobby-decision

[ihpguy]

More of the old same old, same old. These guys are nuts. Or maybe very smart. Another way to get around abortion for the Right 5,

[RA1]

I consider birth control to be a subject limited to the woman herself + any she chooses with whom to consult whether her doctor, her husband, her lover, her family or friends. However, as a Libertarian, I am not sure who should pay for any possible birth control drugs or devices. My first thought is that she should pay or arrange to pay for what ever she chooses herself. However, I realize there are many opinions and possible options regarding this in fairness and equity. I suppose my conclusion is that no one should be forced to provide this coverage and that such coverage should be optional to both the provider and recipient.

Best regards,

RA1

[AdamSmith]

Is an employer who is a Christian Scientist therefore justified in opting out from providing health care coverage because of his religious beliefs?

That is one of the points Ginsburg was making in her dissent: that carving out contraception as a special case for religious-precept-based exemption inescapably opens out into broader principles of employment law that were thought to be settled.

[AdamSmith]

Ruth Bader Ginsburg Was Right, and We Already Have Proof

Zoë Carpenter on July 2, 2014 - 5:14 PM ET

The Nation

Among the many questions raised by the Supreme Court’s ruling in Burwell v. Hobby Lobby is how sweeping its legacy will be. Supporters of the decision have insisted that the ruling is “narrow,” as it explicitly addresses “closely held” corporations objecting to four specific types of birth control—including IUDs and Plan B—because the bussiness’ owners consider them (inaccurately) to cause abortion. Besides, the Court argued, the government can just fill any coverage gaps itself, and it’s only women whom corporations are now permitted to discriminate against. “Our decision in these cases is concerned solely with the contraceptive mandate,” claimed Justice Samuel Alito, writing for the majority. “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employers’ religious beliefs.”

Bullshit, is essentially what Justice Ruth Bader Ginsburg had to say about the majority’s claim to have issued a limited ruling. In her dissent, Ginsburg deemed it “a decision of startling breadth.” She noted that “‘closely held’ is not synonymous with ‘small’,” citing corporations like Cargill, which employs 140,000 workers. Even more alarming is the majority’s endorsement of the idea that corporations can hold religious beliefs that warrant protection under the Religious Freedom Restoration Act.

In fact, it only took a day for the Court’s “narrow” decision to start to crack open. On Tuesday, the Court indicated that its ruling applies to for-profit employers who object to all twenty forms of birth control included in the Affordable Care Act’s contraceptive mandate, not just the four methods at issue in the two cases decided on Monday.

In light of its ruling on Hobby Lobby and a related suit, the Supreme Court ordered three appeals courts to reconsider cases in which they had rejected challenges from corporations that object to providing insurance that covers any contraceptive services at all. The plaintiffs in all three cases are Catholics who own businesses in the Midwest, including Michigan-based organic food company Eden Foods. Meanwhile, the High Court declined to review petitions from the government seeking to overturn lower court rulings that upheld religiously based challenges to all preventative services under the mandate.

It’s bad enough that the Court privileged the belief that IUDs and emergency contraceptives induce abortion over the scientific evidence that clearly says otherwise. With Tuesday’s orders, the conservative majority has effectively endorsed the idea that religious objections to insurance that covers any form of preventative healthcare for women have merit. This development is not surprising, as it’s the logical extension of the premise that the intangible legal entities we call corporations have religious rights. That’s a ridiculous idea, certainly, but not a narrow one—no matter Alito’s assurance that he intends it to be used only to justify discrimination against women.

The cases that must now be reopened aren’t even based on junk science, just general pious resistance to women’s health services. And at least one of those cases is only tenuously about religious freedom. “I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control,” Michael Potter, the founder of Eden Foods told Irin Carmon. “What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” As one judge wrote, “Potter’s ‘deeply held religious beliefs’ more resembled a laissez-faire, anti-government screed.”

The hole that the Supreme Court tore in the contraceptive mandate can be repaired with a tailored fix, most likely by the Obama administration extending the same accommodation it offered nonprofit religious groups to women working for the closely held for-profit corporations implicated in the Hobby Lobby ruling. Under that work-around, insurance companies themselves—or, in some cases, the federal government—will pick up the tab for female employees’ contraception coverage when their employer opts out.

More vexing is the extension of the RFRA to corporations. Business owners now have a new basis for trying to evade anti-discrimination laws and their responsibilities to their employees. Religious liberty is already the rallying cry for conservatives looking for a legal way to discriminate against LGBT Americans; other business owners have tried to use religion to justify opposition to minimum-wage laws and Social Security taxes. Faith groups are already trying to capitalize on the Hobby Lobby decision out of court; on Wednesday, a group of religious leaders asked the Obama administration for an exemption from a forthcoming federal order barring federal contractors from discrimination on the basis of sexual orientation or gender identity.

According to Alito, courts have no authority to “tell the plaintiffs that their beliefs are flawed.” Where, then, are the boundaries? How will courts decide which beliefs are “sincerely held?” Alito asserts that the majority opinion provides “no such shield” for other forms of discrimination, but we have to take his word on it. The language of the ruling may be limited to contraception, but there are no explicit constraints on its underlying logic.

http://www.thenation.com/blog/180509/supreme-court-has-already-expanded-its-narrow-hobby-lobby-ruling#

[AdamSmith]

Where Will the Slippery Slope of ‘Hobby Lobby’ End?

There’s no telling how far religious exemptions will go under Justice Alito’s ruling.

Katha Pollitt

July 2, 2014 | This article appeared in the July 21-28, 2014 edition of The Nation.

Facts are stubborn things, as John Adams famously said. Unless, that is, you’re talking about religion. Then facts don’t seem to matter at all: right you are if you think you are. The Hobby Lobby case was billed as a test of religious freedom versus the power of the state: Did the Religious Freedom Restoration Act (RFRA) mean that David Green, the evangelical Christian CEO of a chain of crafts stores, could be exempt from providing coverage for the full range of contraceptives for his employees under the Affordable Care Act? Green balked at including Plan B, Ella (another form of emergency contraception) and two kinds of IUD, because, he claimed, they caused “abortion” by preventing the implantation of a fertilized egg.

The Court’s 5-to-4 decision—which featured all three women justices ruling for the workers, and all five Catholic men ruling for the corporation—was wrong in many ways. But the thing I really don’t understand is why it didn’t matter that preventing implantation is not “abortion,” according to the accepted medical definition of the term. And even if it was, Plan B, Ella and the IUDs don’t work that way, with the possible exception of one form of IUD when inserted as emergency contraception. As an amicus brief from a long list of prestigious medical organizations and researchers laid out at length, studies show that emergency contraception and the IUD prevent fertilization, not implantation. They are not “abortifacients,” even under the anti-choicers’ peculiar definition of abortion. (Green is actually more moderate than some anti-choicers, who include hormonal contraception, aka “baby pesticide,” as abortion.) Why doesn’t it matter that there is no scientific evidence for Green’s position? When did Jesus become an Ob/Gyn?

For five members of the Supreme Court to accept a canard that happens to accord with their oft-expressed anti-choice views suggests that their sympathies from the outset lay with the anti-choice CEO and not his women employees. What about those workers’ religious freedom? The decision means that the government cannot compel a CEO to violate his religious beliefs, but a CEO can violate the religious beliefs of his workers. How is that fair? But then, it was a bad day all around at the Court for women and workers. In Harris v. Quinn, the same five justices ruled that home health aides, even when paid by Medicaid, are only “quasi public” employees, which means that those who refuse to join a union don’t have to share in the costs, even though all workers will benefit from union victories. Ninety percent of these aides are women, whose ability to bargain collectively will now be significantly weakened.

Where will it all end? “It is not for us to say that their religious beliefs are mistaken or insubstantial,” Justice Alito writes. There is no limit to religious requirements and restrictions in our land of a thousand “faiths.” Several companies have already filed cases that object to all forms of contraception, not just the four singled out by Hobby Lobby, and the day after the decision the Court clarified that its ruling applied to all methods. And why draw the line on legal exemptions at religion anyway? Plenty of foolish parents now risk their children’s lives and the public’s health because they reject vaccines on “philosophical” grounds. What happens when Aristotle, the CEO, claims that birth control—or psychotherapy or organ transplants—goes against his “philosophy”?

Justice Alito’s opinion is canny. Slippery slope? No problem: “our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs.” He specifically mentions vaccines, blood transfusions and protection from racial discrimination as being in no danger, but he gives no argument about why Hobby Lobby’s logic would never apply. In other words, birth control is just different. Of course, it’s about women. Anyone could need a blood transfusion, after all, even Alito himself. And it’s about powerful Christian denominations, too, to which this Court slavishly defers—for example, in the recent decision finding no discrimination in the Christian prayers that routinely open town council meetings in Greece, New York.

As Ruth Bader Ginsburg argues in her stirring dissent, there’s “little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.” The reason it’s unlikely the Supreme Court would uphold a religious exemption for vaccinations or blood transfusions is not something intrinsic to those claims; it’s simply that Alito finds them weird. Birth control is banned by the Bible? Sure. Blood transfusions are banned by the Bible? Don’t be silly. For now. We have no idea, really, how far the Court might be willing to extend RFRA. Could a CEO refuse to pay childbirth costs for unmarried women? Could he pay married men more because that’s what the Lord wants? (Actually, he’s probably already doing that.) But here’s my prediction: the day a religious exemption burdens by so much as a mouse’s whisker the right of men to protect their own bodies from unwanted, well, anything, is the day the Supreme Court Five discover that religion is not so deserving of deference after all.

It would be nice to think this ruling, which applies only to “closely held corporations,” will affect few women. Unfortunately, these are not just sweet little family businesses. As Ginsburg noted, some are huge—Dell, Cargill, Mars. Altogether, they employ some 52 percent of the workforce. True, most either offer contraception coverage already or are exempt because they employ fewer than fifty workers, but who’s to say what the future holds? Companies change hands, CEOs find Jesus—or Allah or Thoth or L. Ron Hubbard. It’s not reassuring that a CEO’s views of a fertilized egg get deference today, but workers’ contraceptive coverage is left to the fates.

http://www.thenation.com/article/180499/where-will-slippery-slope-hobby-lobby-end

[ihpguy]

Where's Anita Hill and her fur pie when we really need her?

[RA1]

Today has been a busy day for me so I have not yet read and thought about the analysis of Justice Ginsberg's dissention above. But, I shall.

To answer or start a debate on one question posed, yes, I do think Christian Scientists can opt out of many things. They can refuse to hire and let go any employees for whatever reason except race, gender and a few other things.

Do we really want Christian Scientists to only hire Christian Scientists or Jews to only hire Jews or Blacks to hire only Blacks, ETC., ETC.?

Without some give and take, that could be a (negative) result.

I would like to think that an employer would like to hire the best qualified person available and offer them reasonable benefits. One problem is the definition of best qualified and also reasonable benefits.

I consider all this matters for discussion.

Best regards,

RA1

[RA1]

After reading the Carpenter and Pollitt commentaries, the one thing that stands out to this Libertarian is recurring theme that the Federal government can fix and pay for this. This means two things to me; one, the further intrusion of the Federal government and the further use of tax dollars in a manner to which I am opposed.

It seems to me the Supremes have done several things in this matter and others that are not viewed as correct or reasonable by one "side" or the other. In the first place, Obamacare is apparently considered unconstitutional except when viewed as a tax. Well, some think we need more taxes but I am not one of them. It seems this act will be fiddled with by the Congress and the Supremes until some time when it is probably not recognizable as resembling the original concept and everyone is unhappy BUT the cost of it will continue. The possible efficacy of it has not been determined, never mind demonstrated.

Obviously this public debate will go on and on. The country seems politically completely at odds with one another. I do not blame the Democrats or the Republicans; I blame them both.

Best regards,

RA1