4 Brilliant Arguments for the SCOTUS Decision


June 30 was a dark day for the women’s rights movement and national public health. In Burwell v. Hobby Lobby (and Conestoga Wood), the Supreme Court favored Hobby Lobby in a 5-4 decision, ruling that closely-held (where over half of shares are held by fewer than 5 people) for-profit corporations could nix contraceptives from their employees’ health care benefits, if they conflicted with the company’s religious beliefs.

All three female justices dissented from the court majority opinion, with Justice Ruth Bader Ginsberg delivering a weighty 35-page dissent.

The case originated with the passage of Obama’s Affordable Care Act (ACA), which mandated that FDA-approved contraception be covered under certain employment health benefits. The punishment for disregarding this was a $100 a day fine to the company per employee, or the requirement to provide higher wages to offset health care costs. Hobby Lobby maintained that they’d take the fine before they provided certain forms of birth control (which, up to that point, they had already been providing), and took their argument to the courts.

It has since emerged that Hobby Lobby invests, at least indirectly, in the very companies that produce the contraceptives they have removed from their employees’ health insurance plans.

This ruling is polarizing—it fuses controversy over Obamacare, abortion, and Freedom of Religion. The conservative and liberal pockets of the internet have been engaged in what is best-described as a hate-mongering cluster fuck.

Full disclosure: you will see in my little bio at the bottom of the article that I favor women’s rights, and thus you can consider me biased — but (unlike Hobby Lobby), I’m not going to impose my beliefs on you. I’m here to deconstruct the arguments in support of the ruling with some fairly compelling logic. I’ll reserve the hate-mongering for the rest of the internet.

With that, let’s deconstruct some of the arguments in support of the ruling, and their implications.

“If you disagree with Hobby Lobby’s beliefs, go work somewhere else.”

Hobby Lobby employs 21,000 people. If their employee demographics are similar to typical employment breakdowns, we can assume there are 10,500 or more women who just lost access to certain contraceptives through their health insurance plans. In the grand scheme of things, perhaps that number is negligible. But there are roughly 82 companies slated to follow suit — and many of them are pushing for even harsher rejections of contraceptive coverage. More on that in a minute.

You now have 82 companies’ worth of women who have been denied (or will be denied) access to contraceptive coverage at varying degrees.  Even accounting for the women who do not want or need access to particular contraceptives, that number is no longer negligible. And that number is only what has popped up this week. Not to mention, older employees’ daughters who may have been covered under their parent’s plan have now been denied access to certain contraceptives.

Are these 82 companies’ worth of women supposed to up and leave their jobs? How very unfeasible (and unfair) that suggestion is. For many women (and men), it’s near-impossible to say no to a fair-wage job with health care benefits. Those benefits were federally regulated under ACA to be adequate for the masses; now, the closely-held companies can determine what is adequate for their employees, who far outnumber them, per the company’s religious convictions.

“Hobby Lobby only banned 4 out of 20 contraceptives, because they are abortifacients. And the Supreme Court ensured that the decision was narrow enough to shield against expanding this.”  

Yes, the initial ruling only nixed four contraceptives from Hobby Lobby and Conestoga Wood’s insurance plans. Four important contraceptives, including the two available emergency contraceptives and the two different IUDs. Science does not support the idea that any of these are abortifacients.

Emergency contraceptives exist to be used in, what else, an emergency. A condom breaks. You missed your pill. As far as their mechanisms, they do not constitute the clinical definition of an abortion. When not subsidized by insurance, they cost between $35-60. For some, that’s affordable. For others, that’s the choice between feeding their family for a week and their bodily autonomy.

The two forms of IUD, hormonal and non-hormonal, are prohibitively expensive up front without insurance (between $700-$900, plus the cost of visiting the doctor for insertion). They are geared toward women in long-term relationships, as they provide protection for 7-10 years. The non-hormonal IUD is a preferred method for women who do not handle the hormones of most birth control options well — one of the reasons I myself had one inserted. The hormonal IUD can be beneficial for some women who suffer from a variety of reproductive disorders.

But hey, it’s just four types. That’s a downright compromise.

Too bad it only took the Supreme Court a day to start expanding their “narrow” decision.

 “It’s religious freedom. It’s protected by the constitution!”

First of all, the final decision did not invoke the constitution whatsoever. For those quoting the Free Exercise clause of the first amendment ad infinitum, it’s prudent, for your own ethos, to stop that nonsense. SCOTUS instead determined that, per 1993’s Religious Freedom Restoration Act (RFRA), that corporations can be considered persons and are thus entitled to exercise religious liberty. They describe the decision as simply reinforcing the RFRA.

Justice Ginsburg’s dissent (joined by Justice Sotomayor) is in thorough disagreement: “Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities.”Her fellow dissenters, Justices Breyer and Kagan, argued that “”the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits” and thus the decision to give human rights to companies was unnecessary.

So, of the nine people in charge of deciding these things for the country, five thought this was okay and four did not. Pretty slim margin.

Did I mention that those five were all men? Which brings me to the next argument.

“This is not an attack on women!”

Oh, did men get IUDs inserted into their uteruses and have to physically ingest emergency contraceptives?

This decision, as it stands, is an affront to women’s autonomy. It directly impacts women and their reproductive decisions. But hey, supporters, you’re right about one thing: this can very quickly become more than an attack on women.

As Justice Ginsburg points out: “this is a decision of startling breadth.”

She asks: “Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives 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)?”

To say no to these objections would be to invalidate the beliefs of one religion and favor another. If the spirit of this ruling is to protect religious liberty, to not approve these requests would send the message that only certain religious requests are reasonable. WASPS are not the only Americans who deserve religious liberty, y’all.

The solution to this was to keep religion and business separate — but the majority court decision did not, and took us straight into that damned “minefield” everyone keeps quoting.

Picthx @bakerbk


~ 4 Brilliant Arguments for the SCOTUS Decision ~

Courtney Hamilton

An avid writer, reader, feminist and french fry fanatic.