Supreme Court Justice Ruth Bader Ginsberg begins her dissent to Monday's 5-4 Hobby Lobby ruling with a short quote from a 1992 landmark decision — reaffirming Roe v. Wade — penned by the first woman ever appointed to the high court, Sandra Day O'Connor:
The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.
Congress, Ginsburg writes, was acting in recognition of this fundamental truth when it included in the Affordable Care Act in 2010 a provision requiring employer health plans to consider the specific health needs of women. The Department of Health and Human Services, with the input of expert entities such as the Institute of Medicine, ultimately interpreted this to include coverage of contraceptives.
This idea — that women's reproductive well-being is vital to both their personal prospects and the country's fortunes — runs throughout Ginsburg's dissent. It is notably absent from Justice Samuel Alito's majority opinion.
In fact, it's simply notable that all three of the court's current female justices dissented from the court's opinion, in which it ruled that for-profit corporations owned by people religiously opposed to contraception may refuse to provide insurance covering it. In the long line of decisions about women's reproductive rights that have not been made by women, this is yet another.
The difference between the majority opinion of five of the court's men and the dissent of its three women (plus Justice Stephen Breyer) is instructive. The majority opinion is largely about the rights of corporations, employers and those with religious beliefs; the dissent is very much about women — about their health, the sums they spend to access care and the costs they pay when none is available.
The 49-page majority opinion mentions "women" or "woman" a mere 13 times (I've excluded footnotes and URLs here). It does not mention women's well-being once.
Ginsburg's dissent, at 35 pages, mentions women (singular or plural) 43 times, their well-being four times.
An opinion on this case, in short, looks very different when it's written by a woman. Of course, all three of the court's sitting female justices were appointed by Democratic presidents, and so their gender is not the only thing that unites them. But what's so compelling about Ginsburg's dissent is not merely the legal interpretations she reaches, but the facts she brings on board to get there.
Mandated contraception, she writes, enables women to avoid the health problems associated with unintended pregnancies ("pregnancy": another word that does not appear once in the majority opinion). It "secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain."
The cost of an IUD, she notes, is roughly equal to a month of full-time pay for a worker on minimum wage. Only about a quarter of women who request an IUD, Ginsburg cites, actually have it inserted after learning the cost.
Here's another from her opinion: Research suggests that one-third of women would change their contraceptive if money were not a factor.
These are not facts that are relevant to a majority opinion constructed largely around the assessment that the contraception mandate places a "substantial burden” on the religious beliefs of owners of companies like the Hobby Lobby chain of craft shops. They're not particularly relevant to the novel idea that religious liberties should extend to corporations, too.
Ginsburg's opinion methodically dissented from every step in the logic chain that led the court's majority here. Religious protections don't extend — and never have extended — to for-profit corporations that serve all kinds of believers (and non-believers), she argues. And even if they did apply to corporations, she adds, the federal requirement to provide health insurance that covers contraception hardly constitutes a "substantial burden" on the religious conscience of people who own those corporations:
It is doubtful that Congress, when it specified that burdens must be “substantia[l],” had in mind a linkage thus interrupted by independent decision-makers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.
The requirement to provide that insurance, she adds in the next step, furthers the government's compelling interest in women's well-being and public health (those two topics that don't merit much attention from Alito). The last legal question at stake here asks whether or not the mandate constitutes the government's "least restrictive means" of serving those goals. On this point, Ginsburg is dismissive of the majority's suggestion that government should just pay itself for what the owners of Hobby Lobby do not want to.
"Where is the stopping point," she asks, "to the 'let the government pay' alternative?"
At every step, her legal argument keeps an eye on the woman who might work for Hobby Lobby, and the larger interest the government has in ensuring access to reproductive health care for women like her, even with the value of religious freedom in mind. If the court had a few more women (or men attuned to the social, financial, and familial costs of unintended pregnancies), its conclusion might have looked like this:
No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door, at least in the absence of directions from the Legislature or Administration to do so.