Hobby Lobby Case Could Deliver Women a Bitter Pill

Credit: Mike Kalasnik on Flickr, under Creative Commons

(WOMENSENEWS)–With the fate of health reform’s contraceptive benefit on the line, women’s rights groups were outspoken on Twitter Tuesday as the Supreme Court considered the religious right of Hobby Lobby, a private company, to deny contraceptive coverage to female employees in its health insurance policy.

On Twitter, Cecile Richards, president of Planned Parenthood Federation of America, touted the importance of having three women on the bench for this decision.

Proud to be at SCOTUS today and have these 3 on the bench – why equity in the judiciary matters! pic.twitter.com/o3Tsb4Mcy8

— Cecile Richards (@CecileRichards) March 25, 2014

The hashtag #NotMyBossBusiness was popular on Twitter and Planned Parenthood Action Fund showcased a piece of testimony from Dr. Jamila Perritt, medical director of Planned Parenthood of Metropolitan Washington, D.C., that expressed the sentiment.

Awesome quote from @PPMW_Connected’s Medical Director in front of #SCOTUS this morning. #NotMyBossBusiness pic.twitter.com/DrUp45gl4t

— Planned Parenthood (@PPact) March 25, 2014

A decision is expected around June and after the 90-minute session the Washington Post reported that the lines of questioning by the judges suggested it could wind up agreeing with lawyers for Hobby Lobby that the company did not have to cover all types of contraceptives.

The case is widely described as pitting women’s rights against religious rights and many legal commentators are warning of its even wider implications.

Beyond Birth Control

The New York Times on March 25 reported that in a brief filed this month, “Solicitor General Donald B. Verrilli Jr. warned the justices that a broad decision striking down the contraception provision could imperil minimum wage and overtime laws, Social Security taxes and vaccination requirements, all of which have been subject to religious challenges in earlier cases.”

Rep. Ted Deutch, a Florida Democrat, also argued that a decision in Hobby Lobby’s favor could restrict other types of medical coverage.

#HobbyLobby not just about birth control. Employers against blood transfusions, vaccines could obstruct workers’ care. #NotMyBossBusiness

— Rep. Ted Deutch (@RepTedDeutch) March 25, 2014

In its real-time coverage of the High Court hearing, Live Blog: Contraception Cases at Supreme Court, Wall Street Journal reporters described Justice Samuel Alito’s concerns for the corporate side:

“Justice Alito said that Denmark reportedly has banned kosher and halal butcher shops because it considers them inhumane to animals. What if Congress did the same thing — could it effectively ban the forms of animal slaughter prescribed by Jewish and Islamic law? Were kosher or halal butcher shops prohibited from raising claims because they are in the corporate form, he asked? Mr. Verrilli said they could raise claims under RFRA as corporate entities, but could get their cases into court through other means, such as raising claims on behalf of their customers or under straight constitutional arguments under the First Amendment.”

RFRA refers to the Religious Freedom Restoration Act of 1993, which was designed to protect an individual person’s right to exercise his or her religion even if it meant requiring exceptions, such as the right of a Sikh person in the U.S. military to wear a head covering. Hobby Lobby lawyers cite that law in combination with the Supreme Court’s 2010 decision in Citizens United, which granted corporations the rights of persons when it came to making political contributions.

Hobby Lobby’s Objections

Hobby Lobby owners say they shouldn’t have to provide birth control coverage because they object to abortion and they regard emergency contraception as a form of abortion.

“Justices Breyer and Scalia suggested that the government could perhaps accommodate religious belief by paying for the challenged contraceptives itself,” Wall Street Journal reporter Jess Bravin blogged.

New York Rep. Jerrold Nadler, a longtime member of the House Judiciary Committee, described himself as an architect of the Religious Freedom Restoration Act and decried the way Hobby Lobby is trying to use the law. In a March 25 press statement,

Nadler said the law was intended as a shield, not a sword. “Bosses should not be able to make health care decisions about the reproductive choices of their employees,” Nadler wrote. “No matter how sincerely held a religious belief might be, for-profit employers – like Hobby Lobby and Conestoga Wood – cannot wield their beliefs as a means of denying employees access to critical preventive health care services.”

Nadler went on to say that 99 percent of all American women who are sexually active in their lifetimes use birth control and that their interests must be upheld. “When we passed RFRA, we sought to restore – not expand – protection for religion,” Nadler wrote. “We kept in place the core principle that religion does not excuse for-profit businesses from complying with our laws. Religious belief did not excuse restaurants or hotels from following our civil rights laws in the 1960s or an Amish employer from paying into the Social Security system in the 1980s. It should not be expanded now to allow for-profit companies to override the health care choices of female employees.”

Partisan Divide

Nadler is a Democrat and the partisan sides of this case are boldly drawn.

Texas Republican Sen. Ted Cruz, a leading proponent of social conservatism, was widely retweeted for supporting Hobby Lobby on constitutional grounds.

Senator @TedCruz: "The first freedom in the First Amendment is religious liberty." pic.twitter.com/c1lpA05B4l

— Hobby Lobby Case (@HobbyLobbyCase) March 25, 2014

The Democratic National Committee is promoting a video about how this case plays into the broad struggle over the Affordable Care Act. In the video, one of the highlighted facts concerns the widespread use of contraceptives as treatment for medical issues ranging from endometriosis to migraine.

In her analysis for MSNBC, “Is a corporation religious? Maybe, say Justices,” Irin Carmon, wrote that “the women on the court, Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, expressed deep skepticism that it was workable to allow corporations religious exemptions, citing religious objections to everything from vaccinations to family leave.”

Carmon tweeted that Kagan, in particular, was “on fire today” about the harm that a decision in favor of Hobby Lobby would do to women. She concluded that the general direction of the questioning suggests that the justices “are likely to divide along traditional partisan lines, with Justice Anthony Kennedy providing the tie-breaking vote.”

To assist reporters covering the case, the New York-based Women’s Media Center, a watchdog group, is publicizing its Media Guide to Covering Reproductive Issues on Twitter.

On Monday night, on the eve of the hearing, groups of pro-choice demonstrators held “light brigades” in cities around the country, spelling “Stand With Women” or “Hands off Birth Control” with hand-held lights hoisted together in the darkness.