Who knew my response to Burwell v. Hobby Lobby was going to turn out to be a tetralogy? It’s like I’m channeling Douglas Adams when So Long, and Thanks for all the Fish came out. (pour one out for my homies)
Where was I? Oh yeah, the unexpected tetralogy. The elephant in the closet.
My other posts and link roundups have said a lot about the bad science and reasoning in the Burwell v. Hobby Lobby decision, about the slippery slope of its implications for other targets of prejudice, and the catastrophic implications of the decision insofar as what it suggests about women’s rights and women’s bodies. But I’ve (unconsciously) sidestepped the hot-button issue at the heart of it all: a woman’s right to have an abortion.
Yes, the Supreme Court precedent of Burwell v. Hobby Lobby is now being used to challenge a women’s reproductive rights right pretty much across the board, but the case started with the dividing line the Green family wished to draw between most contraceptives and the four they (incorrectly) believed to be abortifacients. Yes, that belief is factually incorrect, but it does starkly highlight the moral boundary that the Green family (and many other individuals) wants to live within. “This far, but no farther. Preventing pregnancy is okay, but we will not support abortion.”
I’m sure I could find my usual bouquet of articles to quote and synthesize in that way I do when I’m thinking through an issue and saying my piece about it. But that’s not where my head and heart are at tonight.
Instead, a highlighted link to one single article on A is For by actress Martha Plimpton. It’s a long read, and a rich one — Plimpton interweaves the Burwell v. Hobby Lobby decision with McCullen v. Coakley in a way I have thus far been unable to do, and uses both of these SCOTUS decisions as backdrop for a longer discussion of the state of, and absolute need for, abortion rights in the country. Rather than trying to summarize it all, I’m just going to recommend you head on over and read it in its entirety. (Content note: the article includes the famous post-mortem image of Gerri Santoro first printed in Ms. Magazine in 1973. Be prepared.)
I’ll just pull one quote over to here:
So many of us seem to have forgotten what life was like before Roe v. Wade, when women were dying in pools of their own blood. Or were being interrogated on hospital gurneys by police while they were bleeding out during a miscarriage. Or being raped by hack abortionists in unlicensed offices. Or needing hysterectomies because of botched illegal abortions. Or having to wait until too late in their terms because they couldn’t get an abortion in time, being forced to abort in filthy, unsafe, terrifying, life-threatening situations.
So many of us are deluded enough to believe—or have been duped into believing—that advances in women’s rights are the result of a curious flight of fancy that some ill-informed, hysterical woman made us think was a good idea for a minute, and not the excruciating reality of life for women before them. “That buffer zone? That was silly!” “That right to terminate a pregnancy? That was just your imagination, you thinking you need that.” “That contraception mandate? Why, you foolish ninny! Who told you you could have that? A LIBERAL? Ha ha! Rights, schmights. Don’t you know your body is public property?” Ridiculous women and their “needs” fucking up everything for all the fun people.
In the Salon piece I quoted a few times yesterday,* Dawn Johnson reminds us that.
The typical American woman wishing to have only two children spends thirty years, three-quarters of her reproductive life, seeking to avoid unintended pregnancy. Half of all pregnancies in the United States (more than three million a year) are unintended. More than half of American women will experience an unintended pregnancy.
So you need to be vigilant for a few decades of time, and hope that you don’t end up on the wrong side of those 50-50 odds of unintended pregnancy.
I was four years old when the Roe v. Wade decision affirmed a woman’s right to have an abortion. I may have a few more years of (hypothetical) reproductive life in these old ovaries, but the basic truth is that for all of my sexual maturity, I have known that I had access to contraception and abortion services if I needed them. Yes, the courts have been chipping away at this right almost since the Roe v. Wade decision was first issued, but the core essence of this right held up for all the years I personally had need of it.
On the other hand, my niece recently turned 18. I don’t know if she’s sexually active yet — and all my over-protective aunt instincts are rising in me to say “I hope she’s not sexually active yet!” But I intellectually understand how, even if she isn’t sexually active right now, she could be soon. Or if she isn’t, she has friends and classmates and future college room-mates who are/will be.
The pace of attacks on abortion rights has only been accelerating in the last few years. Exactly what tattered cloth of choice will my niece and her age cohort be inheriting? They are at the start of those thirty years of reproductive life, and I would guess that most of these young women are starting this journey from the perspective of trying to prevent unwanted pregnancies. But they are doing so when access to contraceptives and abortion services are as difficult, as barrier-laden, and as INaccessible as they have ever been in my lifetime.
What sort of compromised freedom are these young women being forced to inherit? And thirty years from now, will their daughters and nieces have any rights left at all?
* Okay, I’m linking to more than one article. You can take the scholar out of school, but you can’t take schoolish habits out of the scholar…
The Supreme Court wasted no time in delivering a message to anyone who thought its Hobby Lobby ruling was limited to religious objections to coverage of purported abortion methods:
The day after handing down the Hobby Lobby decision on Monday, the court issued orders pertaining to six pending cases in which employers claimed religious objections to allcontraceptive services required under the Affordable Care Act. The court either ordered appeals courts to reconsider their rejection of the employers’ claims in light of the Hobby Lobby decision, or let stand lower courts’ endorsement of those claims.
With Tuesday’s orders, the conservative majority has effectively endorsed the idea that religious objections to insurance that covers any form of preventative healthcare for women have merit. . . . The cases that must now be reopened aren’t even based on junk science, just general pious resistance to women’s health services. And at least one of those cases is only tenuously about religious freedom. “I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control,” Michael Potter, the founder of Eden Foods told Irin Carmon. “What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” As one judge wrote, “Potter’s ‘deeply held religious beliefs’ more resembled a laissez-faire, anti-government screed.”
So, to take John Stewart one step farther, not only does the sincerely-held-but-factually-innacurate belief of an abstract business entity matter more than the legal and reproductive rights of actual human females, so, too, does the self-serving faux-belief of someone who’s parroting religious language as a justification to deny employees part of their compensation package. (See here for more about the issue of health insurance as earned compensation rather than a piece of corporate largesse.)
It’s enough to make me want to run screaming through the streets. Party on, Amurrica, with your false narratives of Independence Day and freedom, while you light off sticks of brightly colored dynamite. The country will never be free until all its peoples are free and we’ve got a long damn way to go on that score.
But I digress. Ahem. Where was I? Oh yeah, having a screaming pigtails moment about the lying liars who talk about this case as if it were about religious freedom rather than misogyny. Me and Ann Friedman, both:
There are two competing narratives about the Hobby Lobby case and how big of a deal it is. To hear the all-male Supreme Court majority and many legal analysts tell it, this . . . will result in a minor inconvenience for a small number of women who work for certain employers or have certain insurance plans or wish to use certain forms of contraception. It may not even be about women at all. . . .
Then there’s my own interpretation, . . . most accurately expressed as an outraged scream, sort of a combination groan-wail, issued while beating my fists against the desk on either side of my laptop.
I love the vividness of that description, and how on-point it is for my own sometimes-inarticulate rage around all many layers of awfulness in this decision. And around the casual misogyny of those out in the public I’ve seen supporting the Burwell v. Hobby Lobby decision as if it’s a good thing.
There’s not enough time left in the evening to try and point-counterpoint everything that could be said about the misogyny at play here, so I will content myself to a few main threads.
One: “What are you so upset about? This is just about 4 specific contraceptives!”
Except, as the lede above discusses, it took less than 24 hours for the scope of implication to expand well beyond “4 specific contraceptives.” The LA Times refers to 100 pending cases that have been given fresh life with this ruling, while MSNBC links to a list of 149 companies whose cases to limit women’s reproductive freedom are active and pending somewhere in the court system. Some of these companies and cases object not only to all forms of contraception, but also to any sort of medical counseling about contraception or abortion. To quote the LA Times, “The floodgates aren’t about to open–they’re already open.” (At the risk of being too self-referential, I said much the same last night.)
And, even if it were just about those “4 specific contraceptives,” there would still be something very wrong with this decision. From Salon:
Women choose among available methods of contraception based on a range and a combination of factors that may change over the course of their lives, including their particular life circumstances, health needs, economic resources, and religious and other beliefs. Contraceptive methods vary dramatically in their effectiveness, which provides another contributing factor in women’s decisions. Hormonal IUDs can be forty-five times more effective than oral contraceptives and ninety times more effective than male condoms in preventing pregnancy, based on typical use.
Forty-five times and ninety-times more effective, y’all. That is statistically significant, as they say in the research biz. Also, Cynthia Greenlee in The Root explains the various reasons — biological, cultural, societal — that the contraceptive methods specifically targeted by Hobby Lobby are often the best choices for women of color. Meaning that the negative ramifications of the Burwell v. Hobby Lobby decision are likely to be most painfully felt by women who are doubly marginalized in the kyriarchy, particularly women of color and those of low socio-economic status.
No, that’s not even remotely a little bit surprising. But it’s still appalling. Which brings me to…
Two: “What are you so upset about? Women can choose to work elsewhere!”
I love the by-your-bootstraps boner that so many (predominantly white, male) social conservatives have. We all have free choice on everything, it is said, but then every choice has its associated consequences. You can chose to work somewhere that gives you more contraceptive choices, but then you have to sacrifice the more-than-minimum-wage that Hobby Lobby pays its employees. Or, you can take the higher salary but then you have to live with the paternalistic reproductive oversight of an abstract business entity that has more legal rights than you do as a living, breathing woman.*
An in an abstract, college-freshman Philosophy 101 kind of way, there is some sliver of truth there. We all have choices, and choices have consequences. But to my eyes, this abstracted notion of choice gets very messy once you have to confront the fact that in the really real lived world, it is marginalized (and multiply marginalized) individuals who more frequently face hard choices or have to feel the most devastating consequences of those hard choices. To return to NY Mag:
This idea — that women can always find another way to get the coverage or care they need — underpins just about every recent restriction on women’s health. What’s another 24-hour mandatory abortion waiting period? To a woman who lives 25 miles from the nearest provider, it’s everything. What’s one more tweak to a law about the width of clinic doors? To a clinic that can’t afford to remodel, it’s everything. What’s a minor policy change that means you have to pay full price for that IUD? To a woman who makes $14 an hour, it’s everything.
A choice isn’t really a choice when you can’t find another job, or when it’s the end of the month and the checking account is empty and the morning-after pill costs $50 without insurance, or when the only approved birth control methods won’t work for you. For decades, activists have invoked a woman’s “right to choose” — choose when it’s the right time for her to have children and when it’s not, and to choose which contraceptive method to use in the meantime. In theory, women are still allowed to make these choices in America. In practice, though, to choose you must have options. Health insurance is one of the things that guarantees options and access. Freedom, as the conservatives say, isn’t free. For a choice to be a true choice and not a default, sometimes we have to subsidize it.
Almost one-third of women report that they would change their choice of contraceptive method if cost were not a factor. That’s tens of millions of women. . . . Especially for women of limited economic means – like the full-time minimum wage worker to whom Justice Ginsburg referred who cannot possibly afford a month’s salary for an IUD – the religious views of their bosses (or the bosses of their spouse or parent) may now trump their own religious beliefs, as well as needs that flow from their own health, family, and life circumstances. . . . Justices and their families, one expects, will not struggle with the choice between an IUD or new shoes and a winter coat for their children. Or confront the inability to purchase any of the above. But thanks to the Court’s ruling, more women are likely to experience such harms – at least unless and until the other branches of our government act to protect women from the imposition of their bosses’ religious beliefs.
(Quick word nerd sidebar. Isn’t it just so fun when legal and social positions that are all about restricting women’s choices and freedoms get couched in the language of “Everyone has choices”?!? More screaming pigtails for me.)
And speaking of choices, let’s move right along to my third and final thread, before I run out of gas.
Three: “What are you so upset about? Just keep your legs closed!”
Ah yes, here’s the final nail in the choice-consequence coffin. Burwell v. Hobby Lobby and its limiting of contraceptive options is to be praised because it means that immoral women will no longer be able to indulge in the sin of consequence-free sex.
Lest you think the phrasing in my header there is offensively overwrought, check out this piece over at Cosmopolitan** which excerpts many, many offensive comments and tweets that say things exactly as rude as “just keep your legs closed” — and many, many ruder things besides.
Demanding that women close our legs and calling us whores for planning our pregnancies confirms the feminist suspicion that opposition to contraception and abortion is less about “life” than it is about a sense that sexually active women are doing something wrong and should be chastened for it. . . .
For women, having an opinion on the Internet virtually guarantees you’ll face abuse, often the sexualized kind. But it’s especially rich seeing misogynist and sexually hostile commentary come from the very people who claim women are just being hysterical when we characterize the Hobby Lobby case as misogynist and hostile to sex.
If nothing else, the virulence of this rhetoric helps ensure the misogyny and retrograde societal values at play show through whatever veneers are being used as covering. To return one last time to Ann Friedman in NY Mag:
My rights feel very much scare-quoted — not rights at all, but a veneer of choice. The medical care that is critical to my ability to live and work — and, yeah, have consequence-free sex — was dismissed by the Supreme Court as relatively unimportant. . . . You don’t choose to need a liter of new blood. You do, however, choose to have sex — if you’re a woman. And so contraception, the majority of justices say, is different. The implication is that women can freely choose to either abstain from sex or have lots of children, which most of us understand is not a choice at all.
Or, as my friend Alice Isak observed: “You women, with your slutty, slutty bodies. Always thinking you should get to use those bodies as you see fit, just because you happened to be born in them!”
So, given all of this, is it okay for me to upset now?
Oh never mind, I don’t need anyone’s permission: I’m upset. More than than, I’m justifiably outraged.
* Yeah, I’m repeating myself. That’s ‘cos the stupidity of this detail especially pisses me off. To quote John Oliver’s response to the question of whether corporations are people who can exercise their religious rights, “No, no they’re not. Okay, we’re done. Are we done here? Are we done? I feel like we’re done. . . . Apparently, we’re not done.”
** Okay, I will betray my own prejudices here in saying 1) I never thought I’d be linking to anything from Cosmo, and 2) if Cosmo is deconstructing and analyzing the misogyny in something, then that something is pretty epically fuckin’ misogynistic.
The day after the Supreme Court’s Hobby Lobby ruling, a group of religious leaders sent a letter to President Barack Obama asking that he exempt them from a forthcoming executive order that would prohibit federal contractors from discriminating against LGBT people.
Full text of the letter is available here on MSNBC.
The network’s post is titled: “Will Hobby Lobby open the religious exemption floodgates?” Considering that it took less than one day to jump the fence from Alito’s definition of the Burwell decision as only relevant to restricting women’s rights to this attempt to use it as precedent to restrict LBGTQ rights, I would suspect the answer to MSNBC’s rhetorical (I hope) question is: Yes, yes, damn it all to hell, yes. Pick your metaphor: floodgates, Pandora’s box, the Protection Grid from Ghostbusters. The damn thing is open for business.
[M]any people view the Hobby Lobby case as concerning not just reproductive rights but also, indirectly, rights for gays and lesbians. Advocates for same-sex marriage have long insisted that their own marriages need not threaten anyone else’s, but citizens with religious objections to same-sex marriage wonder whether that is entirely true: Will a small-business owner be sued, for instance, for declining to provide services to a same-sex couple? Conversely, and understandably, gay and lesbian couples wonder why they do not deserve the same protections from discrimination granted to racial and other minorities. For both sides, Hobby Lobby was merely a prelude to this dawning conflict.
Moving beyond the implications of the decision for any specific marginalized group, Slate provides a brief history of First Amendment case law and the Religious Freedom Restoration Act (RFRA) to demonstrate how, with Burwell v. Hoby Lobby:
The court has eviscerated decades of case law and, having done that, invites a new generation of challenges to federal laws, including those designed to protect civil rights. . . . Justice Samuel Alito claims that RFRA marks “a complete separation from First Amendment case law.” . . . By reading RFRA as creating a total break from decades of First Amendment jurisprudence, the court has freed itself from any precedent that would otherwise have blocked the outcome in Hobby Lobby. . . . Sherbert andYoder—the cases that RFRA was designed to “restore”—are irrelevant. And by implication, so are more than a dozen other precedents that shaped the body of the law governing religious liberty in this country before 1990—the very legal doctrines that Congress intended to re-establish as the law of the land when it passed and later amended RFRA.
Hobby Lobby is unprecedented because it corporatizes religious liberty. It extends to for-profit businesses the rights and privileges that have long been associated only with churches and religious nonprofits. But that change is the result of a more pervasive and deeper upending of the law of religious liberty in America. Ignoring congressional intent, the court reads RFRA as having shed its First Amendment skin.
The more I think on it, the more frustrated I am by the language Alito put into his majority opinion for Burwell v. Hobby Lobby, trying to claim that the decision shouldn’t be read as precedent for much of anything. Obviously, I’m just a reasonably-well-educated citizen — no law degrees, no special legal expertise — so I could be totally wrong about this. But my understanding is that one of the Supreme Court’s mainfunctions is to be creating precedent for the law of the land. So when Alito tries to pretend otherwise with Burwell v. Hobby Lobby, is he being naive or just plain disingenuous?
(And I Can’t Even insofar as the one commentator I saw suggesting that if Burwell v. Hobby Lobby goes on to be used as precedent for further discrimination, the fault will lie with the strong wording of Ginsberg’s dissent rather than the original decision. Forgive me a reductionist moment of complaint: of course it’s the woman’s fault! Grrr.)
Now, as far as I’m concerned, there’s a particular danger in leapfrogging too quickly over the immediate implications of Burwell v. Hobby Lobby to worry about the “slippery slope” of how the decision can be used to justify these further pieces of injustice and prejudice.
Even if it were possible to hold the “Alito fence” around the decision’s relevance so that it impacted nothing besides women’s reproductive freedom…on that measure alone, I consider the decision to be morally reprehensible and worthy of outrage.*
These additional implications of using the decision as legal precedent for a new 21st century theocracy? That’s just the shit-cream frosting on this entire Cake of Suck.
* Which is why I’ll be diving back into that side of things tomorrow. But that will be a loooong writing process, and I can’t find all my words for it tonight.
Sometimes I feel as if I am becoming a wind-up doll of feminist outrage: point me in the direction of the newest misogynist disgrace, turn my key a few times, then watch me sputter and rant away. And maybe I’ll break this pattern, one of these years. But how can I do anything but voice my outrage when there are so many legitimately rage-inducing things happening every damn day?!?
Today’s miscarriage of justice is brought to you by the highest court in the land. As summarized by ABC News:
In a deeply divisive case pitting advocates of religious liberty against women’s right’s groups, the Supreme Court said today that two for profit corporations with sincerely held religious beliefs do not have to provide a full range of contraceptives at no cost to their employees pursuant to the Affordable Care Act.
Never mind the hypocritical contrast, reported by Forbes back in April, between Hobby Lobby’s 401k investments and the “deeply held religious principles” argued before SCOTUS:
In what just may be the most stunning example of hypocrisy in my lifetime, Mother Jones has uncovered numerous investments on the part of Hobby Lobby’s retirement fund in a wide variety of companies producing abortion and contraception related products. . . . In the case of the Hobby Lobby corporation, the company is closely held by the Green family who purport to have strong religious objections to certain types of contraceptive devices and are suing to protect those religious rights.
Remarkably, the contraceptive devices and products that so offend the religious beliefs of this family are manufactured by the very companies in which Hobby Lobby holds a substantial stake via their employee 401(k) plan.
Never mind all the ways this decision is actually deeply out-of-step with public opinion on the matter:
According to a new Reuters/Ipsos poll that surveyed more than 10,600 people earlier this month, the majority of Americans don’t believe that business owners should be able to invoke their religious beliefs in order to avoid offering contraceptive coverage to their workers. (ThinkProgress)
Let’s just look at the decision itself and all of the ways it is appallingly bad.
First is the way this decision supports bad science: Hobby Lobby’s argument against supporting its employees’ access to these particular contraceptives is based in the fervently held and entirely incorrect belief that these contraceptives function as abortifacients:
Had any court subjected the Greens’ claims to evidentiary proof, it surely would have reached the same conclusion shared by the scientific community: None of the mandated contraceptive devices to which the Greens and Hobby Lobby object are “abortion-inducing.” (RH Reality Check)
Which brings me to major terrifying problem number two: the “minefield” of implications opened up by the Court’s ruling “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” (Justice Ginsberg’s dissent, as quoted by HuffPo). Many other commentators have remarked upon the ruling’s possible implications for business owners to justify a denial of additional modes of care that contradict their deeply-held religious beliefs — even when those beliefs are profoundly controverted by medical evidence and practice. To quote Justice Ginsburg again (this time, by way of Mother Jones):
Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]
But wait: the decision’s main author, Justice Samuel Alito, has headed that “slippery slope” argument off at the pass by specifically articulating the narrowness of the scope of influence for this legal precedent (via Slate):
This decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates, that is for blood transfusions or vaccinations, necessarily fail if they conflict with an employer’s religious beliefs.
So corporations-that-have-been-awarded-legal-personhood don’t get to impose their religious beliefs on employees’ health care? Unless they’re policing women’s sexuality and reproductive cycles, of course.
Why does this not make me feel better?
Enter major terrifying problem number three: the mind-numbing misogyny at play. Again. Yet and always, ever and ever again.
“What we saw today was five male justices essentially rule that discrimination against women is not discrimination at all,” Ilyse Hogue, President of NARAL Pro-Choice America, countered. “They said it’s OK for bosses to make personal decisions about health care which we pay for with our labor.” (CNN)
No matter the legal rhetoric, the message about women and sex remains the same. It seems appropriate that that quote from Ellen Willis is from the essay “Abortion: Is a Woman a Person?” Because what’s at stake in a decision like this – and in a debate like this – is women’s basic humanity, of which sexuality is an integral part. Yes, contraception is about health and women often need birth control for medical reasons – but we also need it for sex, and that’s just fine. (The Guardian)
Oh, SCOTUS. Some days you’re at the vanguard of American growth and progress, sometimes you are just appallingly retrograde.
I have some slim level of hope that the obscenity of this ruling will, in hindsight, turn out to be one of those “winning a battle but losing the war” moments, as Slate suggests it may become:
Ever since the lawsuits began over the HHS contraception coverage mandate, the claim has been that the attacks are not about sex but about religion—which presumably has broader implications than simply resenting women’s sexual liberation. But this decision limits the employer’s religious reach exclusively to judgments about the employee’s personal use of her own vagina, and no further. . . . [I]t’s ultimately not good for the religious right to have one of its own—Alito—limit the scope of legitimate religious grousing to matters of sexuality, as if religion has nothing else going for it. Hobby Lobby may have won this battle. But it won at the price of portraying the Christian right as little more than a movement of sex-obsessed busybodies.
But considering the long-standing tradition (thenandnow) of policing women’s sexuality, there’s part of me be that wonders if supporters of this decision will actually be thrilled to claim the title of sex-obsessed busybodies. Because they have the way the truth and the light, and they’re saving all us evil feminists from our wantonness! No wait: they don’t actually give much of a shit about us feminists females. It’s all about protecting those poor children. At least until fetal implantation in the uterine wall. Everything after that — pre-natal health care, maternity leave, sane child-care options (both for working mothers, and also an economy where a single middle-class income is capable of supporting someone wanting to be a stay-at-home Mom or Dad)? You’re on your own.
Which is why I remain the wind-up doll of feminist outrage.
At least this all serves as an opportunity to remember what a bad-ass Ruth Bader Ginsberg is. Not only did she write a blistering 35-page dissent (linked in its entirety on Scribd), she took the not-unprecedented-but-still-highly-unusual step of reading her dissent from the bench:
Dissents from the bench are a rare departure from the Court’s carefully choreographed movements. Reserved for cases in which there are heated disputes among the justices, they gave a dissenter the ability to publicly shame the majority for perceived errors. (U.S. News and World Report)