The 88 Percent: The Supreme Court’s Hobby Lobby decision threatens all contraception
The 88 Percent
The Supreme Court’s Hobby Lobby decision threatens all contraception
By SARAH R. BOONIN
WHEN THE U.S. SUPREME COURT RULED 5-4 THIS PAST SUMMER IN THE CASE OF BURWELL v. Hobby Lobby Stores, Inc., the court’s majority tried to cast it as a decision about “religious freedom.” That’s because it allowed closely held corporations with religious objections to certain types of birth control to escape the mandate of the Affordable Care Act to provide contraceptive coverage to its employees.
Commentators widely condemned the “breathtakingly broad” scope of the 5-4 opinion in Hobby Lobby, and many bemoaned the court’s further personification of corporations as having religious faith. But a closer look at Hobby Lobby reveals a far broader and deeper threat to women’s reproductive health than most realize. Perhaps that is because the court’s majority virtually erased women from the pages of its opinion, even though it was about our lives.
Any study of U.S. reproductive-health law should begin with the case of Griswold v. Connecticut. Written almost 50 years ago, Griswold held that the constitutional right to privacy includes the right of married couples to make personal decisions about using contraceptives. It ushered in a new era of women’s control over their bodies and transformed women’s ability to participate more equally in nondomestic spheres.
Since Griswold, the right to contraception has served as the foundation for the court’s treatment of women’s reproductive health. It laid the legal groundwork for a broad range of sexual and reproductive freedoms, including the right to abortion, the decriminalization of same-sex intimacy and, most recently, the right to same-sex marriage. Yet a majority of the court in Hobby Lobby displayed an utter disregard for Griswold and women’s access to contraception.
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Perhaps the most glaring example of the opinion’s indifference to women’s reproductive interests came as the majority considered whether the government had a “compelling interest” in mandating contraceptive coverage. Almost as an aside, the majority declared the government’s justifications for the mandate—including public health and gender equality—to be too “broad” and “unfocused.” But how are public health and gender equality any broader than the “sincerely held religious beliefs” that carried the day? Without deciding the issue of compelling interest, the majority grudgingly assumed the government’s interests were sufficient— but then they ruled in favor of Hobby Lobby on other grounds.
To be clear: A majority of the U.S. Supreme Court refused to make a definitive decision on whether or not the government has compelling reasons for ensuring women’s access to contraception. Even Justice Anthony Kennedy was disturbed by this and wrote separately to clarify, among other things, that the contraceptive mandate furthers “a legitimate and compelling interest in the health of female employees.”
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http://www.msmagazine.com/fall2014/88-percent.asp