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.