Right-wing media are celebrating now that the conservative justices of the Supreme Court have issued their unprecedented ruling in Burwell v. Hobby Lobby, with the Court adopting a number of conservative myths in the decision that allows sex discrimination in the name of corporate religion.
On June 30, the conservative majority of the Supreme Court -- five men and no women -- held that “closely held” for-profit secular corporations like Hobby Lobby are exempt under the Religious Freedom Restoration Act (RFRA) from the “contraception mandate.” This so-called mandate, a provision of the Affordable Care Act (ACA), requires employer-sponsored health insurance to cover comprehensive preventive health care, including birth control. In so holding, the Court's decision in Hobby Lobby gave credence to some of the worst conservative myths that have been steadily advanced by right-wing media.
The fact that Hobby Lobby likely employs workers who have no moral or religious dispute with contraception didn't seem to be of much concern to outlets like The Wall Street Journal, National Review Online, or Fox News. From the start, NRO framed the case as a David and Goliath-like scenario, with the Green family owners of Hobby Lobby as victims of the federal government -- despite the fact that Hobby Lobby is a massive corporation, owned by billionaires, with hundreds of stores across the country. Fox & Friends host Elisabeth Hasselbeck went so far as to call the contraception mandate evidence of the “moral decay” of the Obama administration's policies. For right-wing media, the religious beliefs of the owners took precedence over those of their female employees. Apparently, the Supreme Court agreed.
The Court attempted to limit its decision to “closely held” corporations like Hobby Lobby, but according to experts, more than 90 percent of corporations are considered to be “closely held.” In his majority opinion, Justice Samuel Alito downplayed the significance of the Hobby Lobby decision's expansion of the concept of corporate personhood, writing that “a corporation is simply a form of organization used by human beings to achieve desired ends” and claiming there was nothing radical about extending rights “whether constitutional or statutory” to for-profit secular corporations. His opinion conflated these businesses with non-profits just as right-wing media had urged.
The religious rights of the employees, now held hostage by their employers' moral objections, did not appear to make much of an impact on the Court's conservative majority.
Moreover, wrote Alito, the birth control requirement was not “the least restrictive means” of achieving the “compelling governmental interest” of ensuring no-cost comprehensive preventive health care services for everyone. Instead, said the majority, the government should “assume the cost of providing the contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections,” thus shifting the employee-earned benefit of health insurance from a billion-dollar corporation to the general public.
It was enough for Alito that the Greens “sincerely believed” that the contraceptives at issue in the case are “abortifacients” -- echoing right-wing media's constant confusion of the two -- even though they really, really aren't.
The Court claimed that its holding should not be construed to allow employers to engage in discrimination “cloaked as religious practice to escape legal sanction,” but it certainly took a particular interest in making it more difficult for women to obtain vital health services in the event their employer objects to female-specific birth control for religious or moral reasons. In another attempt to contain its holding in Hobby Lobby, the Court concluded that its ruling was “concerned solely with the contraceptive mandate.” The Court went on to reject the idea that providing an exemption to the mandate for for-profit corporations would open the door for religious employers to deny coverage for all sorts of medical services -- like blood transfusions and vaccinations. Taking a page straight from right-wing media outlets like NRO, Alito stressed that it was unlikely that religious employers who object to those kinds of procedures would challenge the mandate, since apparently none had complained before the passage of the ACA in 2010.
The conservative majority believe that just because they are unaware of any religious employers challenging the law over immunization coverage, there's no reason to think they'll start now -- evidently forgetting the fact that the Court just held that owners of for-profit, secular corporations now have the ability under RFRA to object to coverage for their employees based on the owners' religious beliefs. For the majority to ignore the fact that its decision in Hobby Lobby is an invitation for even more legal challenges from religious employers is a bizarre oversight.
Furthermore, even though Alito suggested that the prevention of racial discrimination (but not sex discrimination) might be a compelling governmental interest that could outweigh a business' purportedly sincere religious beliefs, it was troubling that he failed to note the very real issue of for-profit secular companies currently invoking RFRA to discriminate on the basis of sexual orientation.
All these attempts to “limit” the holding to certain scenarios is unlikely to comfort the thousands of women who rely on employer-provided health insurance plans, and have been singled out by the Court simply because they use a preventive health service that most men do not. As Justice Ruth Bader Ginsburg pointed out in her dissent, she was “mindful of the havoc the Court's judgment can introduce” :
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.
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 owners' religious faith -- in these cases, thousands of women employed by Hobby Lobby ... or dependents of persons those corporations employ.
The conservative majority was unmoved. They yet again entertained and codified right-wing legal arguments that reject precedent and roll back protections for women and other groups that have been targeted by a moral code that they -- and the majority of the country -- may not even subscribe to.