“The Majority Has Ventured Into A Minefield”: Here Are The Highlights Of Justice Ginsburg’s Fiery Hobby Lobby Dissent
On Monday morning, the Supreme Court finally released its much-anticipated decision on the Hobby Lobby case, a decision that lived up to expectations by being split along ideological lines (the court’s five conservatives overruling its four liberals) and severely weakening Obamacare’s birth control mandate.
Also living up to expectations? Liberal Justice Ruth Bader Ginsburg’s blistering dissent, which excoriated the court’s majority for its ruling, describing it as a “radical” decision “of startling breadth” that would have chaotic and major unintended consequences. You can read her dissent in full here (it starts at page 60) but we’ve also compiled some of its best, key parts.
Ginsburg opens with a bang, immediately describing the decision as one that will have sweeping consequences:
In a decision of startling breadth, the Court holds 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.
She frames the decision as one that denies women access to healthcare, rather than as one that upholds religious liberty:
The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.
In a similar vein, she rejects that the birth control mandate should be seen as an act of government coercion, describing it instead as one that provides women with the ability to make their own choice:
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.
She affirms her belief that religious organizations and for-profit corporations serve fundamentally different purposes and have fundamentally different rights (and throws some shade at the majority in the process):
Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. … The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.
She claims that the majority has actually undermined the very principle, religious freedom, it claimed in its ruling to have upheld:
Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.
She writes that the majority has pushed the Religious Freedom Restoration Act past its original intent:
In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
By: Elias Isquith, Salon, June 30, 2014
“What’s Next?”: Yes, Some Corporations Can Pray — And You’ll All Pay
In its decision Monday in the Hobby Lobby case, the conservative Supreme Court majority that upheld corporations’ religious objections to birth control spends an inordinate amount of time defending itself from the reasoning and wrath of Justice Ruth Bader Ginsburg’s dissent.
Justice Samuel Alito, whose name is on the decision, alludes no fewer than 24 times to the “principal dissent,” which Ginsburg wrote for the four-member minority. Plainly, he felt Ginsburg’s powerful intellect breathing down his neck as he tried to find a path to upholding the Hobby Lobby parties’ attack on women’s rights without expanding corporate “personhood” too much.
He failed. Ginsburg concisely labels Alito’s ruling one of “startling breadth,” pointing out all the doors it opens to religious claims by business owners trumping the rights of their employees. She also observes that the majority’s answer to allowing business owners to opt out of covering their employees’ legitimate health needs is that “the general public can pick up the tab.”
In other words, the decision gives business owners the right to weasel out of their legal obligations by sticking you and me with the bill.
The Hobby Lobby case, as we reported earlier, has been percolating for months as yet another corporate challenge to the Affordable Care Act. It was brought originally on behalf of the pious owners of that privately held crafts chain, along with other private businesses. They asserted that their religious convictions were trampled by the Affordable Care Act’s mandate that medium and large employers cover contraceptives for their female employees without cost sharing—that is, without co-pays and deductibles.
The businesses pointed to a 1993 federal law, the Religious Freedom Restoration Act, which prohibits the government from imposing a “substantial burden” on a person’s exercise of religion, even in a generally enforced law. The court majority ruled that the law effectively pre-empts the contraceptive mandate in the ACA.
Eric Posner of the University of Chicago law school contends that, to the extent the majority relied on the RFRA, “Alito’s legal argument is stronger than Ginsburg’s.” But the law itself, he says, “is pretty dumb.”
Alito maintains that his decision is narrow, applying only to contraceptives, and only to “closely-held” companies — that is, not to publicly traded corporations.
Ginsburg doesn’t buy it. She asks how the ruling can be differentiated from those in which business owners pose religious objections to granting insurance coverage for “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia … and pills coated with gelatin (certain Muslims, Jews and Hindus); and vaccinations (Christian Scientists, among others).” She concludes, “the court … has ventured into a minefield.”
Indeed, Alito himself acknowledges that “other coverage requirements, such as immunizations … may involve different arguments about the least restrictive means of providing them” — that is, exempting the employer, and letting government step in.
To a great extent, the decision turns on whether a business is a “person.” This is the same minefield the court seeded in its infamous Citizens United case in 2010, when it held that campaign finance laws limiting corporate contributions violated corporations’ free-speech rights. The detonation of those mines has laid waste to the electoral process, turning it into a playground for corporate interests. (More of a playground, anyway.)
Here the court’s majority rules that a privately held company is, in effect, a “person” that can express religious convictions. Alito sugarcoats that finding, acknowledging that corporate personhood is a “fiction,” but one designed to “provide protection for human beings.”
Ginsburg also picks that assertion clean. “The exercise of religion is characteristic of natural persons, not artificial legal entities,” she writes, quoting retired Justice John Paul Stevens as having observed in the Citizens United case that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.”
Today’s decision invests them with all the consciences, beliefs, thoughts, and desires of characters from Tolstoy. And that’s a lot.
Alito and Justice Anthony Kennedy, in a separate concurrence, argue that the federal government has already offered an accommodation to nonprofit organizations that object to the contraception mandate — they can cede the responsibility for the coverage to their insurers, who cover their own expenses via a rebate on a federal tax. They ask: Why not extend that break to closely held companies?
(That’s how the general public would end up subsidizing the religious discrimination practiced by Hobby Lobby’s owners.)
What Kennedy and Alito seem to miss is that those nonprofit groups didn’t gain the exemption because they were nonprofit, but because their exclusive purpose was religious, not commercial. “The court forgets that religious organizations exist to serve a community of believers,” Ginsburg writes. “For-profit corporations do not fit that bill.”
It will be said that Monday’s decision walked a fine line, giving the Hobby Lobby owners what they sought without opening the floodgates to religious objections to a wide range of laws and regulations.
The court has signaled that it’s open as never before to claims by private businesses for exemptions from laws that apply to the rest of us, based on religious beliefs that can’t be objectively verified. And if they win, we’ll pay. Ginsburg’s question is apt: What’s next?
By: Michael Hiltzik, Columnist, The Los Angeles Times: Published in The National Memo, June 30, 2014
“His Policies Speak For Themselves”: Rand Paul Can Try To Be His Party’s Bill Clinton, But He’ll Never Be President
Rand Paul continues to fling any turd he can find at the Clintons for pretty obvious reasons.
The first-term senator from Kentucky has to do something to show the GOP establishment he can be competitive in a general election, and he’s trying to keep the former president out of his home state’s Senate race so that Rand didn’t sell out to Mitch McConnell for nothing.
There’s no doubt that the younger Paul is a savvy tactician. The proof of this is that he’s ironically trying to follow Bill Clinton’s path to the presidency by staking out a series of “Sister Soulja moment“-like strategic breaks from his party.
Last week, he noted that the GOP’s repulsive attempts to stop minorities from voting are “offending” people. Paul was the first Republican to call out Ted Nugent’s “sub-human mongrel” slurs against President Obama. And he’s built lots of credibility with civil libertarians on the right and left by focusing on “drones,” which has become a code word for “civilian casualties,” which happen to be down under this president, along with military casualties and wars.
Though Paul’s own drone stance is complicated by the fact he thinks it’s cool for a drone to take out an American suspected of robbing a liquor store, his non-interventionist tendencies and willingness to negotiate with Iran do all Americans a favor, providing a hedge against the far right’s recent destructive tendencies toward war.
These anti-war stands will also lead to a deluge of attacks funded by hundreds of millions of dollars should he become competitive in the 2016 Republican primary, which has been designed to give Jeb Bush the nomination, should Jeb want it.
However, these stands are not why Paul will never be president. America is as nearly non-interventionist as he is these days. His Aqua-Buddha past and support for ending some of the drug war have seeped into the mainstream, too. Rand probably can even get away with a dad whose “institute” publishes the work of 9/11 truthers.
What voters won’t tolerate are Rand Paul’s key actual policies:
- He released a budget that calls for the immediate privatization of Medicare and Social Security along with raising the retirement age;
- He favors a flat tax, which would cut taxes for millionaires and raise them on the middle class;
- He supports personhood, which would ban all abortions and some forms of birth control, a stand so unpopular it was even defeated in Mississippi.
Bill Clinton’s strategy was to make the Democratic Party appear more moderate. Rand Paul gets that rhetorically, perhaps.
But single women aren’t going to elect a president who would appoint Supreme Court justices who believe a fertilized egg has 14th Amendment rights. The middle class and seniors aren’t going to trade the Medicare promise for more tax breaks for millionaires. One decent comment on voter ID isn’t going to erase Paul’s opposition to immigration reform — just as one trip to Detroit won’t make him an “inner city” hero.
The usual caveats apply. The economy could go bust or we could find out that #Benghazi is worse than Iraq, 9/11, Watergate, Iran/Contra, Donald Sterling and Cliven Bundy combined.
But Democrats have a natural advantage in 2016, and Rand Paul would take that advantage and put it on steroids.
UPDATE: In a statement to Slate‘s Dave Weigel, Rand Paul’s Super PAC director backed off the senator’s criticisms of voter ID laws: “At no point did Senator Paul come out against voter ID laws. In terms of the specifics of voter ID laws, Senator Paul believes it’s up to each state to decide that type of issue.”
By: Jason Sattler, The National Memo, May 13, 2014
“And May Has Only Just Begun”: 2014’s Most Outrageous Attacks On Women’s Health, So Far
It’s undeniable that American women are facing a dire crisis when it comes to reproductive healthcare. From 2011 to 2013, a record 205 abortion restrictions were enacted throughout the country – topping the total of 189 abortion restrictions enacted in the entire preceding decade. In 2013 alone, 39 states enacted 141 provisions related to reproductive rights, and half of those restricted abortion care specifically. Unfortunately, 2014 is right on trend so far. According to the Guttmacher Institute, legislators have introduced a combined 733 provisions related to sexual and reproductive health and rights so far this year, and it’s only May.
As the war on reproductive rights wages on, the types of restrictions proposed and passed in state legislatures have grown increasingly egregious and some, outright preposterous. Here are a few of 2014’s most outrageous laws so far:
1. South Carolina tries to extend “Stand Your Ground” to fetuses
Florida’s “Stand Your Ground” law has been widely criticized, particularly in response to the deaths of unarmed black teens Travyon Martin and Jordan Davis. But a State Senate committee in South Carolina has apparently decided that not only do they support the state’s “Stand Your Ground” law, but that it doesn’t go far enough.
Last month, the committee voted to expand South Carolina’s “Stand Your Ground” law to specifically include fetuses. Proponents of the bill claim that the state’s current “Stand Your Ground” law isn’t broad enough to protect pregnant women who use deadly force to protect themselves and their fetuses – even though the law already authorizes the use of deadly force to protect oneself or another from “imminent peril of death or great bodily injury.”
What this expansion of “Stand Your Ground” would really do is apply personhood to fetuses by defining an embryo as an “unborn child,” a deliberate tactic to challenge Roe v. Wade and the right to a safe and legal abortion. No state has ever successfully passed a personhood amendment, and the American public continues to outright reject them, even in conservative states like Mississippi. Instead of openly championing the incredibly unpopular fetal personhood legislation, a South Carolina Senate committee has chosen “Stand Your Ground” as the in-road to this dangerous legal precedent that threatens women’s rights and access to reproductive healthcare.
2. Kansas lawmaker proposes a ban on surrogate pregnancy
Though abortion restrictions tend to get the most attention, the attack on women’s reproductive rights doesn’t stop there. A recent Kansas bill, championed by staunchly pro-life state Senator Mary Pilcher-Cook (R-Shawnee), would outlaw surrogate pregnancy. Kansas Senate Bill 302 would render all surrogacy agreements, whether verbal or written, null and void and would make it a misdemeanor to hire or work as a surrogate – an offense punishable with up to a $10,000 and a year in the county jail. Shockingly, Pilcher-Cook’s proposed bill isn’t the first in the nation, but is based on Washington D.C.’s highly restrictive laws regarding surrogate pregnancy. Even so, this bill appears unlikely to pass due to opposition from the Senate President Susan Wagle (R-Wichita).
For those who struggle with infertility or have other health issues that preclude a safe and healthy pregnancy, surrogacy is one of the few options afforded to them in order to conceive and bear biological children. Attempts to ban surrogate pregnancy, whether legitimate or to “start a conversation,” reveal the paternalism that underwrites opposition to women’s reproductive rights. Women are perfectly capable of making their own reproductive decisions, whether to bear their own children, adopt, live child-free, have an abortion, or enter into a consensual agreement with a surrogate.
3. Tennessee votes to criminalize drug use by pregnant women
In response to a burgeoning drug abuse problem, the Tennessee legislature has passed a bill that would criminalize the use of narcotics by pregnant women and allow them to be prosecuted for assaultive offenses if their baby is found to be born “addicted to or harmed by the narcotic drug.” If signed by Republican Governor Bill Haslam, it would be the first law of its kind in the nation.
While the use of narcotics by pregnant women is obviously a health concern, prosecuting pregnant women for drug abuse is roundly opposed by major medical associations and reproductive rights advocates alike. Medical associations state that punitive measures like Tennessee’s bill do not improve pregnancy outcomes and advocates caution that criminalization will only deter drug-addicted pregnant women from seeking treatment or prenatal care, for fear of being arrested and incarcerated.
What’s more, this bill only criminalizes the use of illegal narcotics by pregnant women, which doesn’t account for the majority of babies born with neonatal abstinence syndrome (NAS), a group of problems associated with drug use during pregnancy. According to the Commissioner of the Tennessee Department of Health Dr. John Dreyzehner, 60 percent of babies born with NAS in Tennessee had mothers who had a prescription for the medication they were taking. This bill only criminalizes a certain type of drug use – and critics warn that it will hit black women the hardest.
Criminalization sets a dangerous precedent and hinders drug-addicted pregnant women’s access to vital healthcare and potentially life-saving treatment.
4. Louisiana bill would keep brain-dead pregnant women on life support against family’s wishes
On the heels of the tragic case of Marlise Muñoz, a brain-dead pregnant woman in Texas who was kept on life support for eight weeks against her family’s wishes, Louisiana lawmakers have advanced a bill that would force physicians in the state to keep a brain-dead pregnant woman on life support against her family’s wishes and regardless of how far along her pregnancy is. This bill essentially turns brain-dead pregnant women into incubators against their will, compounding the trauma that their families are likely experiencing.
Unfortunately, Louisiana isn’t alone. Twelve states currently have similarly strict laws that automatically invalidate a woman’s advanced directive about her end-of-life care if she is pregnant. While a provision that would have superseded pregnant women’s “do not resuscitate” orders was dropped from the legislation, Louisiana’s bill would still override the family’s wishes. It’s a dangerous law that destroys brain-dead pregnant women’s personhood and renders her family utterly helpless.
5. Alabama House votes to ban abortions at six weeks
In the last few years, unconstitutional fetal pain bills, which ban abortion at 20 weeks post-fertilization, have become increasingly popular in state legislatures. Nine states now have a 20-week abortion ban on their legislative books – and they’re all based on junk science. Even more egregious and outright unconstitutional are so-called fetal heartbeat bills, which outlaw abortion when a fetal heartbeat is detected. This can be as early as six weeks post-fertilization, or a point at which many don’t even know that they’re pregnant.
Alabama is the latest state to jump onto this outrageous bandwagon, as the Republican-controlled House passed the Fetal Heartbeat Act and three other abortion restrictions. Similar to North Dakota’s six-week ban that was recently struck down by a federal judge, Alabama’s bill would make it a crime to perform an abortion after a fetal heartbeat is detected. Banning abortions at six weeks essentially criminalizes abortion itself, a move that is incredibly unpopular with the American public. Perhaps that’s why this bill ultimately stalled in the Alabama Senate.
Despite their unpopularity and blatant unconstitutionality, it’s unlikely given this political climate that we’ve seen the last of fetal heartbeat bans or other outrageous legislative attacks on women’s healthcare in 2014. After all, May has just begun.
By: Lauren Rankin, Rolling Stone, May 2, 2014
“Where Beliefs Diverge”: The Issue That Turns Republicans Against Israel
America’s right believes that Israel can do no wrong when it’s building settlements in the occupied territories or trying to prevent a nuclear deal with Iran. But when it comes to social policies, fundamentalists ignore that Israel is far more progressive than the United States.
A new governmental panel is suggesting that the Jewish state pay for all abortions for women aged 20-33. Currently, abortions for medical reasons and for girls under the age of 18 are subsidized by the government.
“Unlike in the United States, abortion has never figured in the country’s political campaigns,” The Times of Israel’s Lamar Berman notes. “In fact, Israel does not even have an active anti-abortion movement.”
The Hyde Amendment makes it illegal for Medicaid to fund any abortions, except in the cases of rape, incest or a threat to the life of the mother. Several Republican state legislatures have passed laws that will require women to purchase an additional waiver to cover abortion.
Israel has a single-payer health care system, which helps keep costs low, as Mitt Romney noted during his visit to the country in 2012.
Christians like to play up their connection to the religious traditions of the Holy Land. But abortion is an issue where beliefs diverge.
“That Jewish law does not consider the fetus to be a legal person goes to the heart of why so-called ‘personhood’ amendments—laws that would declare a fertilized egg to be a person with rights—and other attempts by lawmakers and activists to afford fetuses equal protection rights have a constitutional problem,” Sarah Posner notes. “They reflect a particular religious view, one that is not, as Christian-right activists like to say about their beliefs on reproduction, a ‘Judeo-Christian’ one.”
As the far right has moved even further to the right on abortion — passing more restrictions in the last three years than in the decade before — it also has intensified its embrace of the Jewish state. Haaretz’s Chemi Shalev pointed out in 2011 that if President Obama treated Israel the way Ronald Reagan — who placed an embargo on arms sales to the state — did, he would be impeached.
The growing influence of the Christian Coalition following Pat Robertson’s galvanizing 1988 presidential campaign has shifted power to the evangelicals of the Republican Party and given rise to policies based on Christian Dispensationalism, which argues the Jews must return to Israel for the second coming of Jesus Christ to occur. Some Christians go further and argue that the conversion of the “chosen people” is necessary to bring about the rapture. George W. Bush recently raised funds for a group that is actively engaged in converting Jews.
The drastic dissonance between American fundamentalists and Israeli health experts — who would prefer to fund all abortions for all women but didn’t propose this for budgetary reasons — suggests that the right is willing to ignore differences of opinion on reproductive rights… when they’re focused on bringing about the end of the world.
By: Jason Sattler, Featured Post, The National Memo, January 2, 2014
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