“The Court, I fear, has ventured into a minefield.”


Indeed. I totally agree with Justice Ruth Bader Ginsburg’s Dissent in Hobby Lobby/ Conestoga v Burris 2014, having just read her intelligent, assertive, unmitigated dissent. SCOTUS agreed in a 5-4 decision that corporations could effectively opt out of the contraceptive mandate of the Affordable Care Act because it violated the 1993 Religious Freedom Restoration Act (RFRA). This decision effectively allows the religious beliefs of employers to decide whether their female employees’ contraceptive needs will be covered in their healthcare plans.

What this decision really points to is the need to move from an employer-based healthcare system to a single payer system. And the ACA has actually made that transition more feasible with the proliferation of accessible insurance exchanges. Action toward this end is what the response to this decision should be.

The following are choice bits from Ginsburg’s dissent (which can be read in full starting on page 60.)

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of almost any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs [and that] the general public can pick up the tab.

In the court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owner’s religious faith.

Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.

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.

Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.

The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.

In sum, with respect to to free exercise claims no less than free speech claims, “[y]our right to swing your arms ends just where the other man’s nose begins.”

…the exercise of religion is characteristic of natural persons, not artificial legal entities.

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. Indeed by law, no religion-based criterion can restrict the work force of for-profit corporations.

The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.

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.

The mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life-threatening. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain.

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.

Would the exemption…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]…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 [Constitution’s] Establishment Clause was designed to preclude.’

The court, I fear, has ventured into a minefield.


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1 Response to “The Court, I fear, has ventured into a minefield.”

  1. writeejit says:

    So true! And yet again proves that women, and only women should be allowed to decide what we do with our bodies.

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