Where are the women in Justice Alito’s opinion for the majority in Hobby Lobby? In a decision that has so much at stake for women — and, indeed, seems to set up different rules for when reproductive rights are at stake — the rights and interests of women were absent. Instead, the rights and interests of for-profit corporations — their religious liberty, their economic interests, and their personhood — were front and center.
One sentence in particular struck me as eerily familiar and, indeed, infuriating: “The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation.” Just over twenty years ago, in the Court’s 1992 decision in Planned Parenthood v. Casey, it declared something similar but also oh so different: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” (Justice Ginsburg actually begins her dissent with this quotation, reinforcing the disconnect between majority and the dissent as to the central concerns in this case.) Justice Alito’s perhaps unintentional paraphrase of the Court’s prior opinion is stunning.
That led me to do a little rewriting to show the disturbing flip in the majority’s understanding of women’s rights and corporate rights. Here are the majority’s statements in Hobby Lobby, with my edits below each quotation.
“While it is certainly true that a central objective of for-profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so.”
- While it is certainly true that women may choose to become pregnant and become mothers, modern law does not require women to pursue parenthood at the expense of everything else, and many do not do so.
“A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. . . . . And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.”
- A woman is simply a person. An established body of law specifies the rights and obligations of the people (including women) who work for a corporation in one way or another. When rights, whether constitutional or statutory, were extended to women, the purpose was to protect the rights of these people. . . . . And protecting the equality and free-exercise rights of people like the women who work for Hobby Lobby, Conestoga, and Mardel protects the equality and the religious liberty of the humans who work for these companies.
“We doubt that the Congress that enacted RFRA — or, for that matter, ACA — would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans.”
- We doubt that the Congress that enacted RFRA — or, for that matter, ACA — would have believed it a tolerable result to put women workers to the choice of having equal access to basic health coverage to which the law entitles them or allowing their boss to decide they must lose out on access to such critical health care.
“Health insurance is a benefit that employees value. If the companies simply eliminated that benefit and forced employees to purchase their own insurance on the exchanges, without offering additional compensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers.”
- Health insurance is a benefit that employees value. If the companies simply eliminated that birth control benefit and forced employees to forgo it, or pay substantially more for it, it is predictable that the women who work for these companies would face significant disadvantages, and lose out on the ability to advance their educational, employment, and social opportunities.
And I could go on. The rewriting game would be fun if it weren’t so disheartening. These are just a sampling of moments in Justice Alito’s opinion for the majority that demonstrate how much the majority has traded its concern for women, gender equality, and reproductive freedom for a special concern for the freedom of bosses and for-profit corporations to do as they please, regardless of the harm to others.