“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.
The latest theory developed to explain women’s lack of equality in the workplace is the “confidence gap.” In their book The Confidence Code, journalists Katty Kay and Claire Shipman argue women’s lack of confidence and belief in themselves is what is really holding us back from positions of power. Quite frankly, Kay and Shipman are way off the mark with this one. Confidence is not what is holding back women; institutionalized sexism is. Increased confidence cannot make up for the fact that women make $0.77 for every $1 men make. Women are nearly twice as likely (18% to 10%) to face discrimination in the workplace. Female entrepreneurs worldwide face greater obstacles to accessing the capital necessary to launch their businesses than their male counterparts. Women can still be fired for becoming pregnant and do not always have access to paid maternity leave. (My previous post addressed the lack of paid maternity leave in the US, the only industrialized country without it)
If a lack of confidence was holding women back, we wouldn’t need campaigns like Sheryl Sandberg’s “ban bossy.” Confident, authoritative women are seen in a negative light. This socialization stifling leadership qualities begins in elementary school, where female students are called on less and interrupted more. This persists throughout education to the point where women’s opinions are devalued to such an extent that they are viewed as no longer worth sharing.
Shipman and Kay’s confidence theory only further contributes to society’s belittlement of women, the same society that says employers can fire females for being too attractive (I’m looking at you, Iowa Supreme Court) and unpaid interns are not protected from sexual harassment because they are technically not employees. The message being sent by our current society is one that does not value the full dignity and autonomy of women as human beings. No amount of confidence can counteract that. Women can more effectively achieve equality by calling attention to these forms of ingrained sexism and working to change them. Change can begin to take place once we have paid maternity leave, raise the minimum wage, and have unrestricted access to reproductive health services. While some women, as well as some men, lack confidence which holds them back, categorizing all women as lacking confidence only harms our chances of gaining economic equality. It’s time we stop pushing these self-help theories developed predominantly by wealthy, white women, and start working to eliminate barriers to economic independence.
For further feminist reading debunking the confidence gap:
It’s Not the ‘Confidence Gap’ – Here’s What’s Really Holding Women Back by Elizabeth Plank (another favorite feminist of mine)
10 Ways Society Can Close the Confidence Gap by Soraya Chemaly
The Female ‘Confidence Gap’ is a Sham by Jessica Valenti