“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.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 856 (1992). So begins Justice Ruthe Bader Ginsburg’s incredible dissent in Burwell v. Hobby Lobby. Building on their buffer zone ruling in McCullen v. Coakley, the Supreme Court further damaged women’s rights by declaring the contraception mandate violates Hobby Lobby’s freedom of religion. Under the Religious Freedom Restoration Act of 1993 (RFRA), the government cannot substantially burden an individual’s exercise of religion, even if the burden stems from a law of general applicability, unless the law furthers a compelling government interest and is the least restrictive means necessary. Building on this law, in a 5-4 decision, 5 male justices ruled that closely-held companies like Hobby Lobby cannot be compelled to cover contraception in violation of their sincerely held religious beliefs.
Supporters of the decision argue that this is a narrow ruling applying mainly to Hobby Lobby and Conestoga Wood; this is anything but that. Based on the IRS guidelines on “closely held” companies, over 90% of all corporations in the United States are closely held. That means 90% of corporations now have the ability to tell women what to do with their bodies.
However, it’s uncertain how sincere those religious beliefs really are. Hobby Lobby has previously covered contraception for their employees. Another point of hypocrisy: Hobby Lobby’s 401(k) Retirement Plan invests more than $73 million in mutual funds which includes companies that produce emergency contraceptives, IUDs, and drugs used in abortion procedures. On top of that, Hobby Lobby’s insurance plans cover erectile dysfunction drugs, such as Viagra, and vasectomies. Essentially, the company is just fine with male sexuality; it’s when women engage in sex that they really object. Today’s ruling not only codified religious discrimination, it basically declared misogyny to be a sincerely held religious belief. Oh by the way, Hobby Lobby violates Leviticus 19:19 by selling blended fabrics.
In the majority opinion, Justice Alito made not that this decision only covers the contraception mandate, and not other mandates such as for blood transfusions and vaccinations. He further clarified the decision does not provide a “shield for employers who might cloak illegal discrimination as a religious practice.” Apparently, sexism is not illegal discrimination. The opinion further showcases that elections matter and the need for the Equal Rights Amendment.
Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor and partially joined by Justice Elena Kagan, wrote in her dissenting opinion that this is a decision of “startling breadth.” In it, she specifically notes that birth control is not solely used to prevent pregnancy citing its use in some congenital heart diseases, Marfan syndrome, and reducing the risk of endometrial cancer. Justice Ginsburg also makes note of the impact unintended pregnancies have on women; “women with unintended pregnancies are more likely to experience depression and anxiety, and their children face ‘increased odds of preterm birth and low birth weight’.” Citing the Supreme Court’s decision in Employment Division v. Smith, which ruled the First Amendment is not violated when infringing free exercise of religion is incidental in the application of a general law or regulation, Justice Ginsburg states the contraception mandate is applied generally, is “otherwise valid,” focuses on women’s health and not religious freedom, and any effect it has on free exercise is incidental. Furthermore, religious exemptions cannot have a significant impact on third parties involved. In this case, Ginsburg ruled, “it would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.” Justice Ginsburg rejects Hobby Lobby’s argument under the RFRA because its sole purpose was to restore the use of the compelling government interest test in determining cases where free exercise was involved; it was not intended to challenge other areas of law. Justice Ginsburg goes on to say there is no case law prior to the Smith decision that supports the notion that for-profit corporations have free exercise rights. Expanding on this, she writes, “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.”
In dealing with the substantial burden issue, Ginsburg writes the challenge to their beliefs are insufficient to warrant this exemption. Justice Ginsburg noted that a woman who shares the religious beliefs of the Hobby Lobby owners is under no obligation to buy health insurance that covers contraception. However, “no individual decision by an employee and her physician – be it to use contraception, treat an infection, or have a hip replaced – is in any meaningful sense [her employer’s] decision or action…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.”
Aside from failing the “substantial burden” test, Hobby Lobby failed to show providing contraception was not a compelling government interest. Contraception serves the public health and women’s well being. Contraception access allows women to avoid the health problems associated with unintended pregnancies, avoid the risks of pregnancy which can be life-threatening for some, and provide treatment for conditions entirely unrelated to preventing pregnancy, like certain types of cancer and migraines. Justice Ginsburg also emphasized Hobby Lobby’s refusal to cover IUDs, “devices significantly more effective, and significantly more expensive than other contraceptive methods…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.”
The answer to all of this is not for women to close their legs and stop having sex. After all, nobody is challenging the right of males to access Viagra.
Now, when it comes to the 4 contraception methods Hobby Lobby objects to, a little biology lesson is in order. Because, thanks once again to conservatives, most of us don’t receive proper comprehensive sex ed. The 4 methods Hobby Lobby objects to are ella, RU-486, Plan B, and IUDs. The Food & Drug Administration does not categorize these as abortifacients, contrary to what the corporations say. These drugs do not cause abortion, they merely prevent pregnancy. ella is a ulipristal non-hormonal drug that blocks the effects of the key hormones necessary for conception. It belongs to a class of drugs called selective progesterone receptor modulator. The only other approved drug in this class of selective progesterone receptor modulators is the Mifepristone modulator known as RU-486, another drug Hobby Lobby objects to providing. Plan B, which is now available over the counter thanks to the Department of Health & Human Services, is a 1.5 mg tablet of levorgestrel that works to block pregnancy. There is disagreement within the medical community over how this prevention actually takes place, whether it is through preventing implantation or through preventing/delaying ovulation. The majority of research reveals it works through delaying or preventing ovulation. Research also suggests the progesterone in Plan B may make it harder to become pregnant by altering the path of the sperm, making it harder to fertilize the egg. Lastly, intrauterine devices (IUDs) prevent pregnancy by disrupting the way sperm moves, making it impossible to reach the egg. It also change the consistency of the uterine lining which makes it difficult for sperm to reach the egg and fertilized eggs to implant. Copper IUDs create a toxic environment making it impossible for sperm to travel to the egg.The majority of the medical community defines pregnancy as beginning once a fertilized egg has implanted in the uterus.
When all three female justices on the bench are dissenting on an opinion impacting birth control, something is wrong with the decision. As women’s rights organizations move forward, it’s important to find a solution to this gap that has been created in contraception access. While we should work to close this gap, policymakers and feminists should also fight to make birth control available over the counter. These challenges to abortion clinic buffer zones and the contraception mandate are all part of a concerted effort to chip away at Roe v. Wade and ultimately challenge the constitutionality of abortion again. Today’s Supreme Court decision ruled religious beliefs hold more weight than scientific facts. As an atheist and a woman, my rights to freedom from religion and freedom to make my own health care decisions about my body, are trumped by a corporation’s right to ignore science and impose their religious beliefs on their employees. The effects this will have on women, and could have on LGBT Americans through codifying religious discrimination, are frightening.
This morning the Supreme Court struck down Massachusetts’ 35 foot abortion clinic buffer zone law in McCullen v. Coakley. In a unanimous decision, the Court ruled the buffer zone law placed an undue burden on the protesters’ ability to “engage in personal, caring, consensual conversations with women about various alternatives.”
In 2000, Massachusetts passed the Reproductive Health Care Facilities Act which initially established an 18 foot buffer zone around clinic entrances and driveways. Individuals entering inside the 18 foot zone could not get within 6 feet of a patient without consent for the purposes of counseling or distributing literature. These 6 foot zones were deemed unenforceable and the law was amended in 2007 to establish a fixed 35 foot buffer zone. Under the new law, no individuals may enter the buffer zone except for patients entering or exiting the facility, employees of the facility, law enforcement, paramedics, and utilities personnel, and pedestrians using the sidewalk to get to a destination that is not the clinic.
Writing for the majority that included Justices Sotomayor, Kagan, Ginsburg, and Breyer, Chief Justice John Roberts differentiates between protesters and petitioners. He writes protesters “express their moral or religious opposition to abortion through signs and chants, or, in some cases, more aggressive methods such as face-to-face confrontation.” Whereas petitioners “attempt to engage women approaching the clinics in what they call ‘sidewalk counseling,’ which involves offering information about alternatives to abortion and help pursuing those options.” McCullen claims she and other petitioners have dissuaded hundreds of women from obtaining abortions with their calm, caring demeanor and honest conversations. Petitioners say the buffer zones have rendered them unable to perform their counseling.
Chief Justice Roberts writes that the public sidewalk is one of few places remaining where a speaker can be confident he is not simply preaching to the choir; listeners often encounter speech they would otherwise tune out on other means of communication. The Massachusetts Act is not content-based aimed at restricting abortion-related speech, as petitioners argued, because the law is violated not by what is said, but where they say it. Massachusetts’ bases for the law of protecting public safety and ensuring unobstructed access to clinics are legitimate; “large crowds outside abortion clinics can still compromise public safety, impede access, and obstruct sidewalks.” Therefore, the law is content neutral.
In regards to the buffer zone exemptions, exempting clinic employees to walk in the buffer zone, particularly the clinic escorts who accompany patients into the building, is not an attempt to give more weight to the pro-choice side of the argument on the part of the state of Massachusetts. The exemption is limited to “the scope of their employment,” which merely allows them to do their jobs. Petitioners claimed clinic escorts made disparaging remarks about their efforts and often prevented the petitioners from providing literature to patients. Because testimony did not clarify if this was done inside or outside of the buffer zone, and because clinic escorts are told not to express their views on abortion, the clinic staff exemption does not constitute viewpoint discrimination.
Writing the majority opinion, Chief Justice Roberts ruled the buffer zones established by the law place an undue burden on petitioners and significantly limit their ability to provide “sidewalk counseling.” “The Act operates to deprive petitioners of their two primary methods of communicating with patients.” Petitioners are not protesters and merely seek to provide alternatives to abortion. Chief Justice Roberts followed by providing policy recommendations that are less restrictive. Ruling that the law burdens more speech than necessary, Massachusetts can enact laws imposing criminal sanctions on those who obstruct, intimidate, or interfere with someone obtaining or providing reproductive services. Preventing obstruction of clinic driveways is already addressed through local traffic ordinances. Regarding unrestricted access to clinic entrances, police can disperse large crowds that block entrances.
When reading this decision, it should be noted that the Supreme Court justices enjoy hearing arguments and making rulings within the confines of a strictly enforced 100 foot buffer zone. This case highlights how drastically a sympathetic plaintiff can change the entire debate. The Court is completely off the mark in distinguishing protesters and petitioners. Freedom of speech does not guarantee a freedom to be listened to. Clinic protesters have been known to completely block the sidewalk with large posters depicting supposed late term abortions, throw plastic fetuses at patients entering the clinic while standing outside the buffer zone, and threaten women with violence. The decision mentioning the need for police to disperse protesters proves the need for these buffer zones. Violence at abortion clinics is widespread. In Massachusetts, this buffer zone law stemmed from an anti-abortion fanatic shooting 7 people at a clinic. Since 1977, abortion clinic violence has included 8 murders, 17 attempted murders, 42 bombings, and 181 cases of arson.
In the wake of this terrible Supreme Court ruling that once again tells women that no one really cares about our rights, I am even more excited to begin working as a volunteer clinic escort at Planned Parenthood next month. Women do not need to be protected from their own decision to obtain an abortion; they need to be protected from the anti-choice zealots who would rather threaten a woman’s safety than allow access to an abortion clinic.