Tracking the latest developments in the fight for a fair America
By Gretchen Borchelt
Senior Counsel and Director of State Reproductive Health Policy, National Women’s Law Center
The majority opinion in Hobby Lobby erases women from the picture altogether. In a decision that is squarely about women’s health and equality, the male justices in the majority refuse to acknowledge the centrality of women. And in evidencing greater concern for protecting corporations from discrimination than in protecting women from discrimination, the majority opinion creates a hierarchy of discrimination where women are at the bottom (if they even merit consideration at all).
To begin with, Justice Alito’s opinion for the majority barely mentions women. As the Washington Post reported, the opinion uses the word “women” or “woman” a mere 13 times in 49 pages. Closer reading of the majority decision makes clear that seven of those mentions were either because the majority was refuting Justice Ginsburg (and her use of “women”); summarizing the government’s position (and its use of “women”) or describing the birth control coverage requirement (a simple recitation of fact).
That leaves precisely six instances in which the majority—on its own—mentioned the word “women.” There are two possible explanations. Both are troubling.
One is that the majority purposely, as a legal and literary strategy, left out “women”—the better to hide the actual women whose rights are at stake behind asserted concerns about religious freedom. Alternately, it was unintentional, but nevertheless the result of an unacknowledged but deep-seated and culturally-reinforced worldview that just does not take women into account.
Either way, women’s literal absence from the majority opinion highlights how this decision furthers legal doctrine that denigrates and erases women’s reproductive health and rights and recognizes certain forms of discrimination while dismissing others.
The majority opinion does this in a two-step process. The first is by treating birth control as different and less worthy of health coverage than other basic preventive health care services. This is clear in a passage that negatively compares the birth control coverage requirement to other coverage requirements like immunizations. Legal requirements to provide these other health care services are not automatically invalidated by this decision because, the majority explains, they “may be supported by different interests (for example, the need to combat the spread of infectious diseases).” In other words, the majority is saying, birth control is not like those other good, valuable preventive services that actually help people live better, healthier lives.
The majority opinion also merely assumes, for the sake of argument, that the interests served by the birth control coverage requirement—namely promoting public health and gender equality— are compelling and satisfy that prong of the Religious Freedom Restoration Act test. In making an assumption rather than delving into the analysis, the justices in the majority get to avoid any discussion of the benefits of birth control to women, including its place alongside immunizations in promoting public health and its value in furthering women’s equality by addressing discrimination in health care and promoting women’s social and economic opportunities. In fact, the majority opinion puts these interests in quotations, suggesting that they are questionable or invalid (believe me, they are not).
By setting up birth control as separate and less valuable than other health care needs, the majority opinion sets the stage for step two: creating a hierarchy of discrimination with women at the bottom.
The justices in the majority are very concerned about discrimination, but only when it appears to harm for-profit corporations. The majority opinion paints a picture of for-profit corporations that are trying to operate according to religious beliefs, but are threatened by discrimination at every turn. Focusing on the need to protect these corporations allows the majority to ignore the other harm that is at issue in the case: discrimination against women.
If birth control does not really promote public health, then it doesn’t matter if taking the benefit from these female employees means more unintended pregnancies. If requiring insurance plans to cover birth control isn’t acknowledged to close gender gaps in health care, then it doesn’t matter if only female employees lose a health insurance benefit that they earned with their work. If gender equality is not a real result of birth control access, then there is no need to consider whether women are forced to give up educational or career opportunities. If birth control is not directly linked to a woman’s health and the course of her life, then sex discrimination deserves no attention by the majority. And so it gets none.
The bottom line for the majority is that when discrimination against women is tied to their reproductive health, it is different from other forms of discrimination and consequently less important. In this case, it is certainly less important to the majority than protecting for-profit corporations—which the majority decided, for the first time, can exercise religion—from asserted religious discrimination. That justifies the decision’s final conclusion: it is not just acceptable but legally required that the religious beliefs of bosses are allowed to trump a woman’s health and access to the health care she needs.
By Alicia Bannon
Counsel for the Brennan Center’s Democracy Program
On June 26, the Supreme Court invalidated three of the president’s appointments to the National Labor Relations Board. The case, National Labor Relations Board v. Noel Canning, dealt with the president’s constitutional power to make recess appointments. The decision heralds a shift in power to the Senate in the appointments process—making it even more important for the Senate to reform its rules and practices so that vacancies are filled in a timely manner and our courts and agencies are fully staffed.
Noel Canning started as a collective bargaining dispute between a Pepsi bottler and the Teamsters. It turned into a blockbuster case about executive power, however, after the D.C. Circuit decided that three of the NLRB members who had ruled on the dispute had been unconstitutionally appointed by President Obama in 2012.
Noel Canning turned on the scope of the president’s constitutional power to make temporary appointments to fill executive and judicial branch vacancies when the Senate is in recess. Throughout our nation’s history, recess appointments have helped the government run smoothly when the Senate was unable to confirm nominees—including in recent years when the filibuster and other forms of Senate obstruction of the confirmation process would have otherwise left agencies like the NLRB without a quorum. As the Brennan Center detailed in a recent white paper, thousands of temporary appointments throughout history would have been illegal under the D.C. Circuit’s reasoning. Read more
By Megan Amundson
Executive Director, NARAL Pro-Choice Massachusetts
Last week the U.S. Supreme Court released its unanimous decision striking down the Massachusetts Buffer Zone Law in McCullen v. Coakley. The law, passed in 2007, created a 35-foot buffer zone around the entrance to reproductive healthcare clinics. The majority decision was written by Chief Justice Roberts. Justice Scalia filed an opinion concurring in the judgment that Justices Kennedy and Thomas joined. Justice Alito also filed an opinion concurring in the judgment.
The anti-choice petitioners who challenged the Massachusetts law claimed it violated their First Amendment right to free speech. And, in fact, the Supreme Court ruled that the buffer zone did place too large a burden on the First Amendment rights of the petitioners because it curtailed speech on public sidewalks and roadways where individuals have long had robust First Amendment protections. But the Court went further by distinguishing between protestors, who can become threatening and violent, and what the anti-choice movement is now calling “sidewalk counselors”—grandmotherly figures like 77 year-old Eleanor McCullen—who “peacefully” try to talk women out of their decision to have an abortion.
The buffer zone was meant to curtail violent and harassing conduct. But because the anti-choice community effectively argued that the petitioners are instead having “gentle and consensual conversations” to “counsel” women, the Court found that the Commonwealth of Massachusetts had not tried the “least restrictive” tool to prosecute violent behavior before putting in place a buffer zone that impacts the First Amendment rights of the so-called nonviolent “sidewalk counselors.” In short, the Massachusetts buffer zone law simply went too far in responding to the violence on the ground by being applied to all abortion clinics in the state, whether there was a proven need for it or not.
The majority opinion acknowledged the existence of clinic violence and the state’s legitimate interest in protecting public safety. The decision also found that the buffer zone is content neutral, and does not, as the anti-choice petitioners tried to show, allow pro-choice speech within the zone while prohibiting anti-choice speech. Despite the acknowledgement that there is a history of violence at Massachusetts’ clinics, however, the decision largely ignores the very real threat of violence, intimidation, and harassment that still exists for women, doctors, and clinic staff at abortion clinics around the country. Calling protestors by another name, particularly “sidewalk counselors,” is a clear failure to understand the relentless harassment faced daily by women and staff at abortion clinics.
While some protestors may seem “peaceful” in the sense that they say hello before they pummel you with intimidating comments about your private healthcare decision, anyone trying to shame a woman out of a legal decision or block access to health care is just as harassing and capable of provoking violence as the violent protestor. The Court’s decision lends people who call themselves “sidewalk counselors” credence that they do not deserve. The “sidewalk counselors” are not trained counselors: they are people with an ideological agenda who often offer medically inaccurate information to shame and coerce women out of making what is already a difficult decision. Their actions are no less harassing or intimidating because they come from a petite elderly woman rather than a muscular man. For any woman who has struggled with the decision to have an abortion, it does not matter if it is a protestor or a so-called “sidewalk counselor” who approaches her on the sidewalk—both are harassing and intimidating.
The Buffer Zone Law was originally passed because Massachusetts has a history of violence at abortion clinics. In Massachusetts alone, two clinic workers were murdered and five people injured in 1994 when an anti-abortion zealot went on a shooting rampage in two Massachusetts abortion clinics. Fixed buffer zones, such as the law challenged in McCullen, are important preventative measures to help reduce escalating situations that may lead to violence and intimidation at abortion clinics. They prevent protestors from being close enough to women and employees to commit physical acts of violence. They also encourage public safety officers to take the threats of violence seriously. In jurisdictions that have imposed buffer zones around healthcare clinics, 75 percent of abortion providers say that the laws have improved police response time to threats.
Without a buffer zone law, Massachusetts is left to prosecute protestors after violence, intimidation, or harassment has occurred. This makes protecting the public’s safety around clinics much more resource intensive for both law enforcement and the court system. The relatively safe atmosphere in which Massachusetts women accessed abortion care with the buffer zone law in place is in jeopardy. Law enforcement now must wait until a woman is intimidated or harassed before they can act. In Massachusetts, the clock is being turned back to a time of uncertainty and fear when women never knew if they might be physically intimidated and harassed while accessing basic healthcare.
The McCullen decision did not touch Hill v. Colorado, the 2000 Supreme Court decision that upheld Colorado’s 8-foot, no-approach “bubble zone” law around any person within a buffer zone stretching 100 feet from a healthcare facility. While the McCullen decision is narrowly written and only immediately strikes down Massachusetts’ buffer zone law, the court opened the door to litigation against other existing fixed or floating buffer zone laws including statewide laws in Colorado, Montana, and New Hampshire, as well as laws in municipalities across the country, such as Burlington, VT; Portland, ME; Pittsburgh, PA; Chicago, IL; and Sacramento, CA. The anti-choice community has vowed to challenge the remaining laws in light of the McCullen decision, as it set a high bar for any court to uphold those laws.
By Bill Lurye
General Counsel, American Federation of State, County and Municipal Employees
On Monday, the Supreme Court issued its opinion in Harris v. Quinn, a case that was largely ignored by court watchers and much of the media until very recently. At bottom, the case presented a very straightforward question: could the State of Illinois enter into a collective bargaining agreement with SEIU Healthcare Illinois and Indiana that required homecare workers who were not members of SEIU HII to pay to the union their fair share of the union’s cost of representing it? In the lower courts, the National Right to Work Legal Defense Foundation (NRTW), which brought the lawsuit, sought to block home care and other independent providers, like child care providers, from forming unions and having collective bargaining agreements that include fair share fees.
But with Justice Alito at the helm, the Supreme Court entertained new arguments from NRTW that placed before the Court the very existence of public sector unions. NRTW aggressively challenged the constitutional right of all public service employees to form unions to be their exclusive bargaining representative in the workplace; to have their union bargain over matters of concern to them, like wages, benefits, and working conditions; and to have collective bargaining agreements that permit the payment of fair share fees by nonmembers for the services the union provided to them and other bargaining unit members, seeking to overturn Abood v. Detroit Board of Education. Read more
Monday’s Supreme Court decisions in Hobby Lobby and Harris v. Quinn threaten women’s right to participate equally in the workplace
By Michelle D. Schwartz,
AFJ Director of Justice Programs
It’s probably fair to speculate that the vast majority of the 60,000 SCOTUSblog readers Monday morning were there to see what happened in Hobby Lobby—the Affordable Care Act contraception case—and that most casual Supreme Court observers have at most a passing awareness that the Court also decided a major union case, Harris v. Quinn. There are many reasons why we all should pay attention to Harris v. Quinn, but here I will focus on just one that is at the heart of both Hobby Lobby and Harris: In both cases, a majority of five men led by Justice Alito put at risk women’s ability to participate fully and equally in the modern American workforce.
The availability, accessibility, and affordability of contraceptive care are critical to women’s ability to excel and compete in the workplace. Planned Parenthood has demonstrated that birth control has led to dramatically increased workplace participation, higher college graduation rates, and better wages for women. Furthermore, contraceptive coverage is a benefit women have earned—and paid for. As Gretchen Borchelt of the National Women’s Law Center wrote on this page in March:
[I]t’s actually women workers who are paying for this benefit. Health insurance is part of an employee’s compensation—women pay with their labor and through the premium they contribute for their health insurance. A woman worker is entitled to all of the preventive services without cost-sharing, as guaranteed by the law. She deserves to be able to meet her health care needs through her regular insurance plan, just as she accesses other health care benefits, and just as men are able to access the health care they need. This critical health care service—which 99% of women have used at one point in their lives—should not be carved out just because her employer objects to it. Read more