A startling rift appeared Tuesday on the Supreme Court as the three female Justices came out swinging like Brunnhildes — women warriors — for what they erroneously labeled an “entitlement” to employer-provided contraceptives and morning-after pills.
The Justices were hearing oral arguments in Sebelius v. Hobby Lobby Stores, Inc., a case hyped by the Democratic Party as a test for women’s rights. Justices Kagan, Ginsberg, and Sotomayor sprang on Hobby Lobby’s attorney , interrupting his every sentence and pummeling him with questions taken right out of the Democratic Party’s “war on women” playbook.
That playbook was laid out in a brief that had been filed by 19 senators and 91 members of the House, all Democrats , supporting the Obama administration’s legal war against Hobby Lobby, a chain of craft stores that provides health insurance to all employees but refuses to cover morning-after pills such as Plan B and Ella. The owners, the Green family, try to run their business according to Biblical principles, including closing on Sunday, foregoing hauling beer even when their trucks have to run empty, and not providing abortion drugs.
Senator Murray claimed that “What’s at stake in this case before the Supreme Court is whether a CEO’s personal beliefs can trump a woman’s access to free or low-cost contraception under the Affordable Care Act.”
Nonsense. Not one word in the Affordable Care Act guarantees health plans will cover birth control products. There is no right. President Obama and his Secretary of Health and Human Services added that requirement by regulation. Women have a constitutionally protected right to use birth control, but nothing guarantees that they can get it from an employer.
It was shocking to hear Justice Kagan make the same spurious claim — that women are entitled to employer provided contraceptives — during oral argument: “Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage.” Wrong, Justice Kagan. Did you also forego reading the law, like most members of Congress?
The distinction between a regulation and a law is no small matter. As Hobby Lobby’s lawyer stressed in his closing statement, a statute, in this case Congress’s Religious Freedom Restoration Act, trumps a regulation.
Congress passed the Religious Freedom Restoration Act in 1993 expressly to shield believers such as the Green family from any government requirements that would impinge on their ability to practice their faith.
Justice Kagan showed little patience for that concept, and asked whether a victory for Hobby Lobby would invite employers to object to other treatments, such as blood transfusions and vaccines.
“So one religious group could opt of out this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform.” Correct, Justice Kagan. Her vision of a uniform society where all are forced to put aside their diverse beliefs and march in lockstep with the government’s mandates, sucked the oxygen out of the courtroom.
What a contrast to the six male Justices, who, despite their ideological differences, searched for a way to accommodate the administration’s goal without injuring the Greens and other employers spiritually opposed to abortion drugs. These justices called attention to the fact that these drugs are not expensive. Perhaps the government could step in and pay for them. Poor women already get help with birth-control products through Medicaid federal community health plans and Planned Parenthood.
Justice Kennedy, often regarded as the Court’s swing vote, asked the Obama administration’s lawyer: “Under your view, a profit corporation could be forced in principle … to pay for abortions?” The lawyer replied, “but there is no law like that on the books.” Justice Roberts shot back, “Isn’t that what we are talking about …?”
Later, Justices Samuel Alito and Stephen Breyer asked what would happen if Congress passed a law similar to a recent Danish enactment that bars slaughtering animals while they are conscious. Would for-profit butcher shops run by Jews or Muslims be allowed exemptions? The three women justices were disinclined to exempt for-profit companies. Not so, the six men.
Look for a likely 6-3 ruling that if you like your god, you can keep your god, even if you also have to make a living.