In 2007, after the Supreme Court refused to hear a case involving pay discrimination, Justice Ruth Bader Ginsburg wrote a scathing dissent in which she urged Congress to take action where the Court had failed. When President Obama was elected the following year, he took her advice; the first bill he signed into law was the Lilly Ledbetter Fair Pay Act of 2009. As the New Yorker‘s Jeffrey Toobin points out, “A framed copy of the bill, inscribed by Obama, has an honored place in Ginsburg’s Supreme Court chambers.”
Over the past week, we’ve seen the Supreme Court fail once again on the issue of women’s rights. Last Monday, five justices — all male — said that Hobby Lobby’s Christian owners had the right to provide less-than-comprehensive insurance coverage to employees because of their faulty belief that certain contraceptives cause abortion. Later in the week, the justices added that it was too burdensome for a non-profit Christian college to simply fill out paperwork saying they didn’t want to directly provide emergency contraception to faculty members and students.
In both decisions, the dissents were blistering. In the Hobby Lobby case, Ginsburg argued the Court had “ventured into a minefield”:
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives 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 (Christian Scientists, among others)? According to counsel for Hobby Lobby, “each one of these cases… would have to be evaluated on its own… apply[ing] the compelling interest-least restrictive alternative test.”… 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 Establishment Clause was designed to preclude.”
Justice Sotomayor was equally furious in the Wheaton College decision:
Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might…, retreats from that position.
Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.
Today, Democrats in Congress announced legislation to correct what the Supreme Court screwed up — once again, taking the advice of the women on the Court:
The bill, developed in consultation with the Obama administration, would require for-profit corporations like Hobby Lobby Stores to provide and pay for contraceptive coverage, along with other preventive services, under the Affordable Care Act.
“Your health care decisions are not your boss’s business,” said Senator Patty Murray, Democrat of Washington, who led efforts by Senate Democrats to respond to the court ruling. “Since the Supreme Court decided it will not protect women’s access to health care, I will.”
[The bill] says that an employer “shall not deny coverage of a specific health care item or service” where coverage is required under any provision of federal law. Moreover, it says, this requirement shall apply to employers notwithstanding the Religious Freedom Restoration Act.
The bill would not amend that law. It explicitly preserves federal rules that provide an exemption for churches and other houses of worship that have religious objections to providing coverage for some or all contraceptives.
In addition, the bill preserves an “accommodation” devised by President Obama for nonprofit religious organizations, like colleges, hospitals and charities, that have religious objections.
Checks and balances for the win.
The bill would only affect for-profit companies (“closely-held” or otherwise) owned by people who think pushing their religious beliefs onto the employees is more important than the employees’ health. (And make no mistake: The contraception we’re talking about here does far more than just prevent pregnancy.)
Will the bill pass through the House? Probably not. But you know what? Fine. Bring it on. Women’s rights shouldn’t be a political issue, but I can’t wait to see Republicans explain their rejection of the bill on the campaign trail. Let them stumble through explanations of why business owners should be allowed to make it more difficult for women to get the contraception they need… while the cameras roll. Let’s see all the Todd “legitimate rape” Akin clones snatch defeat from the jaws of victory.
If Republicans were smart, they would do anything necessary to avoid debates on social issues this year. But they’re not smart. By opposing bills like this, they’ll just continue to push away female voters (and so many others) with their heartless, scientifically unsound, biblically-based thinking.
(Image via Shutterstock)