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Tuesday, July 1, 2014

Picking through the wreckage of the Hobby Lobby ruling

Posted By on Tue, Jul 1, 2014 at 7:32 AM

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The impact of the U.S. Supreme Court ruling that allows private corporations not to cover birth control under group health plans won't be fully known for years. Some of the reaction and analysis stood out for me.

* STUCK PIGS: Right-wing defenders of the decision think it's bigotry to note that the decision came from five Catholic men. They protest too much. Dissenter Ruth Bader Ginsburg highlighted the weirdness of the majority's stress that this ONLY applied to contraception objections, not other religion-based objections to certain types of medical procedures, medicines and practices. The Court's obsession with reproductive issues — to the detriment of women's health — makes their own personal backgrounds relevant. Not disqualifying. But relevant.

* IT COULD GET WORSE, MUCH WORSE: jeff Toobin, the smart legal analyst writing for the New Yorker, isn't persuaded by those who note the narrowness of this ruling.

In fact, the Court’s decisions in Burwell v. Hobby Lobby and Harris v. Quinn conform to an established pattern for the Roberts Court. It’s generally a two-step process: in confronting a politically charged issue, the court first decides a case in a “narrow” way, but then uses that decision as a precedent to move in a more dramatic, conservative direction in a subsequent case.

The evisceration of the Voting Rights Act followed this pattern.

* WIGGLE ROOM: Several have written that Justice Alito gave the government an out. He seemed to write that the government could mandate private employers to provide contraceptive coverage, but allow them the out given purely religious institutions in the law. That is, make employees pay for this added coverage. Several have written that this means the Catholic groups challenging that aspect of Obamacare will lose a case pending before the Supreme Court.

Little Sisters of the Poor, an organization of Catholic nuns, and several other religious nonprofits have also sued against the contraception mandate even though they qualify for the accommodation, because they believe it does not do enough to separate them from the act of covering birth control. The accommodation says religious nonprofits can fill out a form directing a third-party insurer to pay for the coverage instead of the objecting employer, but the religious groups argue that even filling out a form violates their beliefs.

Alito deliberately left the door open for a ruling either way on the merits of the religious accommodation. "We do not decide today whether an approach of this type complies with [the Religious Freedom Restoration Act] for purposes of all religious claims," Alito wrote. "At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well."

But Kennedy, who would likely be the swing vote in a future ruling in the Little Sisters case, indicated in his concurring opinion on Monday that he would be more sympathetic to the administration han the religious groups on that particular debate.

That's good news only in that it's not bad news. It still leaves women as second-class citizens. 

* EVERYTHING IS NOT ABOUT SEX: Wild exaggerations by supporters of this decision said it was about abortion. Only if you believe disruption of an egg swimming to meet a sperm is an abortion in the case of contraceptives Hobby Lobby doesn't want to cover.  This "pro-life" nonsense also overlooks the simple and important fact that birth control pills are not only used for contraception. Huffington Post:

Though many Americans consider pregnancy prevention a compelling enough public health justification to cover the cost of such contraceptives, the ramifications of the Supreme Court's decision could also affect women who use birth control for other medical reasons.

In 2011, the Guttmacher Institute estimated that roughly 14 percent of birth control users rely on birth control exclusively for non-contraceptive purposes. Some 1.5 million women use birth control to help with medical issues such as ovarian cancer, ovarian cysts, endometriosis and endometrial cancer.

Guttmacher also found that more than 58 percent of all birth control users cite other medical issues in addition to pregnancy prevention, listing reasons such as reducing cramps or menstrual pain, preventing migraines and other menstruation side effects, and treating acne.

* MEN, YOU"RE OK: Many have asked, what about vasectomies and Viagra, a procedure and pill directly and indirectly related to reproduction. Sex IS only for procreation, right? Some churches' doctrine looks askance at tubal ligations for women, for example. Says here that Hobby Lobby continues to cover vasectomies and treatment for erectile dysfunction (presumably including for unmarried men.)

ALSO: Ernie Dumas explains the essential political decisions of this reversal by Republican justices on past rulings that didn't exempt individuals from broad laws on religious objections. It's meant to be a campaign tool in the Obamacare fight.

Here's his column.


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