How Justice Ginsburg’s Hobby Lobby dissent helps shape the debate about reproductive vs. religious rights

Ruth Bader Ginsburg’s 35-page dissent in the Hobby Lobby case has become the blueprint for how liberals talk about the Supreme Court’s decision to allow family-owned and “closely held” corporations the right to refuse birth control coverage to women based on religious grounds.

It has sparked a Twitter hashtag campaign, #JoinTheDissent.  And, in what is likely a first for a dissenting opinion, Ginsburg’s words have even sparked a song, with the chorus “The Court, I fear has ventured into a minefield” lifted from the last paragraphs of the opinion.

(This will not become the song of the summer):

In the dissent, joined by Justice Sonia Sotomayor, Justice Stephen Breyer and Justice Elena Kagan, Ginsburg argues that the Court’s majority erred in granting a for-profit company the type of religious freedoms enjoyed by individuals.  The Court’s designation of Hobby Lobby and Conestoga Woods as akin to people who can exercise a religion is a slippery slope, Ginsburg argued:

 The Court’s determination that RFRA [Religious Freedom Restoration Act] extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.  Little doubt that RFRA  claims will proliferate, for the Court’s expansive notion of corporate personhood–combined with its other errors in construing RFRA–invites for-profit entities to seek religious-based exemptions from regulations they deem offensive to their faith.

Ginsburg also makes a forceful case for birth control, not just as a contraception, but as an economic necessity, something that facilitates “the ability of women to participate equally in the economic and social life of the Nation.”

Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well being.  Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence.  To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children. And the mandate secures benefits wholly unrelated to pregnancy, prevention certain cancers, menstrual disorders, and pelvic pain.

“It is a ringing dissent that really takes the majority decision to task. We have seen it before from Justice Ginsburg especially on issues around women’s health,”  said Gretchen Borchelt, senior counsel at the National Women’s Law Center, which filed an amicus brief in the case. “She is rightly concerned about how far this decision could go.  This decision really opens the door for them to use some of the language in the decision to further their push against non-discrimination principals.”

The suggestion that the Court’s decision could lead to bosses making decisions about people’s health care and also open up a pandora’s box of discrimination, based on race, gender, sexual orientation, with religion as the basis, is the argument that liberals are making.

But conservatives see the majority opinion, written by Justice Samuel Alito, as a victory for religious freedom that is not broad, but rather a narrow carve out not applicable to any corporation or any religious objection.

Erin Hawley, who wrote an amicus brief for the Independent Women’s forum, argued that Ginsberg “overstates what the majority holds.”

“She sees it as a woman’s issue, and she’s been active on this, and this is important to her. But if you read her dissent it doesn’t line up with the majority because she sees it as denying woman access to contraception. It’s about whether an employer must pay for it in violation of their religious beliefs,” said  Hawley, who clerked for Chief Justice Roberts.

Hawley said that Ginsburg “comes up with a parade of horribles,” that are a misreading of the majority opinion.

Indeed, the majority and dissenting opinions are almost like a conversation, with Justice Samuel Alito, addressing some of Ginsburg’s concerns in his opinion.

In any event, our decision in these cases is concerned solely with the contraceptive mandate. 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. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

But, as the Ginsburg inspired song says, “the fight isn’t over,” and this dissent described as “one for the ages,” by one law professor, will shape not only how liberals and conservatives talk about contraception and religion, but future cases as well.

“The tension will contribute to raising this next generation of questions about what the decision really means,” Borchelt, said.

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