August 23, 2014
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ANALYSIS: No 'war on women' - examining Ruth Bader Ginsburg's Hobby Lobby dissent
Posted on Jul 3, 2014 | by Gregory Tomlin

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WASHINGTON (BP) -- Within hours of the Supreme Court's decision in Burwell v. Hobby Lobby, politicians and media outlets were accusing conservative justices of fueling the "Republican war on women." The critics predicted a tidal wave of new cases caused by conflicts between workers and employers who hold "religiously grounded objections" to blood transfusions, antidepressants and medicinal products made from pigs.

Presumptive presidential candidate Hillary Clinton called the Supreme Court's 5-4 ruling "deeply disturbing" and a "slippery slope," likening it to crimes against the rights of women around the world. Clinton said business owners who oppose abortion-inducing drugs in their health plans might be leading the U.S. to create laws like those in countries "prone to extremism."

Clinton also asked if insurance companies could now deny blood transfusions when a business owner objects on religious grounds.

House Minority Leader Nancy Pelosi said the Hobby Lobby decision "could permit for-profit corporations to pick and choose which laws to obey." The "deeply misguided and destructive decision," Pelosi said in a statement, is a devastating blow to women's ability to make their own medical decisions in consultation with their doctors. Women will now have to "jump through extra hoops" to get the contraceptive care they need, Pelosi claimed.

The White House offered a similar interpretation of the ruling, equally foreboding, through the prism of the president, referred to by Press Secretary Josh Earnest as the "constitutional lawyer in the Oval Office."

"There is a problem being exposed that a group of women of an indeterminate size no longer have access to free contraception because of religious views, not their own religious views, but their boss's religious views," Earnest told reporters.

Predictably, and not surprisingly, media outlets supportive of abortion rights, such as Huffington Post and RH Reality Check, echoed the White House narrative.

A commentator with Huffington Post mused that Christians could now "pick and choose" which laws to obey and a "senior legal analyst" with RH Reality Check, which exists solely to champion reproductive and gay rights, cited the court's "deeply ingrained misogyny" as the origin of its decision. The analyst said storm clouds of discrimination are gathering as emboldened Christians prepare to rain frivolous lawsuits on an already overburdened court system --"even though (wink wink, nudge nudge) the Court is only concerned with the contraceptive mandate."

Key source of discontent

Such objections to the ruling by the court's majority have drawn from the dissenting opinion of Associate Justice Ruth Bader Ginsburg. Appointed to the Supreme Court in 1993 by President Clinton, Ginsburg is an experienced ACLU litigator and activist for women's rights.

Ginsburg's 35-page "scathing dissent," as it has been uniformly described by dozens of newspapers and websites, at times reads more like a political policy statement on women's health issues than a legal opinion. Ginsburg extols the benefits of universal health care, particularly with respect to contraception, and claims "the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children" -- though she surely is not referencing the children terminated by federally mandated abortifacients.

The exemption sought by Hobby Lobby, Ginsburg wrote, would "deny legions of women who do not hold their employers' beliefs access to contraceptive care" and force their religious viewpoints on employees. Clinton, Pelosi and the White House press secretary echoed the claim, agreeing with Ginsburg that religious people shouldn't be free to choose whether they want to obey the law.

In an analysis of the case, Eric Posner, a University of Chicago law professor, wrote that Ginsburg had set up the case "as a clash between women's rights and religious rights." At best, that reading "is not an entirely fair characterization of the case," Posner said.

At worst, it is patently false.

Stubborn facts

Lawyers for the two key litigants in the case -- the Green family, who own Hobby Lobby and Mardel, and the Hahn family, who own Conestoga Wood Specialties -- never argued, as Ginsburg and some politicians suggest, that a denial of all contraceptive care was the goal of the Christian families who own the businesses, or that Christians should be allowed to obey only the laws they like. Instead, lawyers for companies argued that they only sought relief in their insurance coverage plans from providing four of the 20 federally mandated contraceptives, including Plan B or the "morning after pill."

The drugs cause the spontaneous abortion of a fertilized egg implanted in the uterus and also may prevent the implantation of a fertilized egg. Associate Justice Samuel Alito, in his opinion for the majority, wrote that "the owners of three closely held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point."

"By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs," Alito wrote, adding, "If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe."

How severe? Perhaps as much as $475 million annually, which no company could possibly sustain.

Second, Ginsburg claimed in her dissent that religious exemptions under that Affordable Care Act should be confined "to organizations formed 'for a religious purpose,' 'engage[d] primarily in carrying out that religious purpose,' and not 'engaged substantially in the exchange of goods or services for money beyond nominal amounts.'"

In other words, according to Ginsburg, religious liberty ends where a third party enters the equation, or where people are gathered for a purpose other than public worship.

Alito, however, wrote that the majority of the court believed the Religious Freedom Restoration Act (RFRA), signed into law by President Clinton in 1993, grants citizens the rights of conscience (religious liberty) even if they are voluntarily associated in a "closely-held" company, or one owned by an individual or a family.

"Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA's definition of 'persons.' But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings," Alito noted. "A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another."

Alito continued, "When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies."

Russell D. Moore, president of the Southern Baptist Convention's Ethics & Religious Liberty Commission, aptly summarized the issue: The government cannot confine religious liberty to the hours Christians are inside the church or make Christians surrender the right because they own a corporation, especially one made up of employees who have voluntarily agreed to work for the pay and benefits offered.

"The government cannot set itself up as lord over the conscience," Moore said after the June 30 Hobby Lobby ruling. "What the Supreme Court has done today is reaffirm a basic American principle that our Baptist ancestors fought for in the revolutionary era."

Moore claimed two different views of religious liberty were in conflict in the United States. In the first, shared among the administration and judges like Ginsburg, religious liberty is believed to guarantee Americans the right to worship in an organized, religious setting.

But, Moore argued, this isn't the view of classical Baptists or "originalist" justices like Alito.

Ginsburg's prediction

Ginsburg contends in her dissent -- and her argument is being repeated by abortion advocates with regularity -- that the Supreme Court had "ventured into a minefield" of questions about judging the merits of religious opinions in cases where companies request exemptions from federal mandates based on religious grounds.

Ginsburg asked if Alito's use of the Religious Freedom Restoration Act, or RFRA, to protect religiously grounded objections to the use of certain contraceptives extends "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)?"

Alito, however, never claimed the majority's ruling carried weight for any case beyond the abortion-inducing contraceptives in the Hobby Lobby case and cases like it.

"Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer's religious beliefs," Alito wrote. The decision could not be used, for example, to justify discrimination in hiring based on religious belief, he wrote.

In the end, Ginsburg offers fears and speculation about what "might" occur in American jurisprudence with respect to religious freedom because of the Hobby Lobby case and the decision resulting from the constitutional protections confirmed in the RFRA.

Ironically, Ginsburg said during her confirmation hearing in 1993 that such speculation is generally something a judge should avoid.

"Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously," Ginsburg told members of Congress. "A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case; it would display disdain for the entire judicial process."

Beyond the rhetoric

While there has been a significant amount of alarmist rhetoric about the Hobby Lobby decision, the Supreme Court did not -- contrary to the reporting of CBS News' Craig Boswell -- exempt Hobby Lobby from the contraceptive mandate in the Affordable Care Act (also known as Obamacare). The judges exempted Hobby Lobby only from paying for the items to which the company's owners conscientiously objected -- abortifacients.

Alito, in his ruling, stated that the government had at its disposal a much less restrictive means of providing abortion-inducing drugs to Hobby Lobby's employees, such as the government paying for it.

Hobby Lobby did not cease providing and has never stopped providing insurance to employees covering 16 other forms of birth control. And the Hobby Lobby case was also only the Oklahoma City-based company and others exactly like it. Certainly, there are other groups that immediately benefitted from the ruling, such as the Eternal Word Television Network, five Catholic charities in Wyoming and Wheaton College.

But other businesses with other claims of conscience will -- as Justice wrote -- have to seek relief from the court by demonstrating that the government's compelling interest in providing components of health care would substantially burden the free exercise of their religion. The court's ruling is not a blanket decision for all cases everywhere.

Finally, the Hobby Lobby ruling is anything but a broader attack on women's reproductive health, as suggested by the Obama administration. As Kathryn Jean Lopez, editor for National Review Online and founding director of Catholic Voices USA, noted, "That the Hobby Lobby case and other objections to the Obamacare mandate are about basic American freedom becomes clear once removed from slogans and accusations about supposed partisan or religious wars being waged on women."

As faith-and-gender blogger Ashley McGuire pointed out at The Federalist, the case wasn't nefarious; it was simply about whether the Constitution accords religious liberty to a family seeking to be faithful to their core beliefs about the origin of life.

"So don't be duped when you hear activists from Planned Parenthood and friends trying to make David Green and Hobby Lobby public enemy number one," McGuire wrote. "He's just a guy who started a business from his garage, one that he runs according to moral principles like any other corporate CEO, a guy who is abiding by the law and treating the people for whom he is responsible with care and concern."
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Gregory Tomlin is a writer based in Fort Worth, Texas, and assistant professor of church history and a faculty instructional mentor with Liberty Baptist Theological Seminary. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
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