I’ve spent the last few days absorbing the Supreme Court’s decision earlier this week to allow craft store chain Hobby Lobby an exemption from covering certain types of birth control based on religious objections.
It’s been an interesting task to reconcile my thoughts about this both as a woman and as a reporter who often writes about the law. I can’t ignore that feels like a step back for women’s rights, but at the same time I know the reality is much more nuanced.
Instead of posting a rant about all of the reasons I am frustrated with this decision (if you are friends with me on Facebook you’ve probably seen enough of that!) I’m going to focus on what it might mean going forward. (And I should pause here to note that this post – and all posts here- reflect my personal views, and not those of my employer).
In conversations about this decision, there seem to be a few main lightning rods – whether or not Hobby Lobby’s fears about the IUD, Plan B and Ella (that they cause abortions) are factually accurate, whether or not birth control is or should be considered medically necessary, and whether everyone is just overreacting because, as the Court said itself, this was a “narrow” ruling.
I want to address the last point, because I think this ruling is anything but narrow. We can talk about technicalities: technically, this was just about Hobby Lobby, and just about four types of contraception. But the legal system works the same way the rest of the world works: give people an inch, and they will take a yard, a football field, a mile. The wording of the decision left significant room for interpretation, and whether or not you agree, what happened at the Court the day after the Hobby Lobby decision is significant.
On Tuesday, while people were trading think pieces and jabs on Twitter, the Court issued orders in six additional cases that suggest Justice Ginsburg’s description of the Hobby Lobby ruling as having “startling breadth” may be an understatement.
You can see the details on SCOTUSblog in the link above, but in three cases in which a federal appeals court had rejected companies’ request for a religious exemption from the contraception coverage mandate in the ACA, the SCOTUS asked them to reconsider. And the Court refused to take up appeals in three other cases in which exemptions were allowed by lower courts.
It’s true that when the Court makes a huge decision like this and then is faced with similar cases, it sometimes directs the appeals courts to go back and rethink their rulings based on the new precedent set by the highest court. But the split of these decisions – asking those who rejected exemptions to reconsider and denying requests to review exemptions that were granted - does seem to suggest a trend.
Time will tell.
Michael Hiltzik expressed some of my other questions and concerns in a piece today over at the LA Times. Namely: how do we know to believe someone who says they have a religious objection? Is there, and should there be, a test? Is that anathema to the secular nature of our judicial system? I recommend checking out his piece, as well as reading all of SCOTUSblog’s analysis, since they seem to be just about as close to the Court as one can get.
And if you want to get really annoyed and/or depressed, depending on your view of all this, check out this Mother Jones’ piece about how this decision may have….killed the corporation?