Ginsburg: ‘Radical’ Hobby Lobby Ruling May Create ‘Havoc’

The Supreme Court justice took on the majority opinion in a biting dissent.

Justice Ruth Bader Ginsburg attends California first lady Maria Shriver's annual Women's Conference 2010 on October 26, 2010 at the Long Beach Convention Center in Long Beach, California.
National Journal
Dustin Volz
June 30, 2014, 6:54 a.m.

The Su­preme Court on Monday weakened Obama­care’s con­tro­ver­sial con­tra­cep­tion man­date, rul­ing 5-4 that some em­ploy­ers can­not be forced to cov­er birth con­trol as part of their health in­sur­ance plans. The ma­jor­ity opin­ion, writ­ten by con­ser­vat­ive Justice Samuel Alito, said such a man­date in­fringes on re­li­gious free­dom, and there­fore can be waived by cer­tain busi­ness own­ers.

But in a blis­ter­ing, 35-page dis­sent, Justice Ruth Bader Gins­burg, joined by Justice So­nia So­to­may­or, lam­basted the ma­jor­ity opin­ion — de­livered by five male justices — as “a de­cision of start­ling breadth” that would al­low cor­por­a­tions to “opt out of any law “¦ they judge in­com­pat­ible with their sin­cerely held re­li­gious be­liefs.”

The ma­jor­ity view “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,” wrote Gins­burg, a stal­wart mem­ber of the Court’s lib­er­al wing.

She con­tin­ued: “Per­suaded that Con­gress en­acted the (Re­li­gious Free­dom Res­tor­a­tion Act) to serve a far less rad­ic­al pur­pose, and mind­ful of the hav­oc the Court’s judg­ment can in­tro­duce, I dis­sent.”

Gins­burg’s opin­ion reas­ons that re­li­gious groups ex­ist to serve the ex­pli­cit in­terests of their ad­her­ents, while for-profit com­pan­ies serve a fun­da­ment­ally dif­fer­ent pur­pose. Buck­ing the ma­jor­ity, Gins­burg sides with the Obama ad­min­is­tra­tion’s claim that for-profit com­pan­ies do not pos­sess re­li­gious rights un­der the RFRA.

Grant­ing them such rights, Gins­burg con­tends, could al­low em­ploy­ers to trample over any num­ber of health care needs in the name of re­li­gious ob­jec­tion.

Would the ex­emp­tion the Court holds RFRA de­mands for em­ploy­ers with re­li­giously groun­ded ob­jec­tions to the use of cer­tain con­tra­cept­ives 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 (Chris­ti­an Sci­ent­ists, among oth­ers)?

To fur­ther il­lus­trate her floodgates point, Gins­burg cites re­tired Justice John Paul Stevens’s opin­ion in the 2010 cam­paign fin­ance rul­ing Cit­izens United v. FEC that claims cor­por­a­tions “have no con­sciences, no be­liefs, no feel­ings, no thoughts, no de­sires.”

“The Court, I fear, has ven­tured in­to a mine­field,” Gins­burg con­cludes, “by its im­mod­er­ate read­ing of RFRA.”

Justices Elena Kagan and Steph­en Brey­er wrote a brief, sep­ar­ate dis­sent stat­ing that, while they agree with Gins­burg that “the plaintiff’s chal­lenge to the con­tra­cept­ive cov­er­age re­quire­ment fails on the mer­its,” they do not join to a sec­tion of Gins­burg’s dis­sent about claims un­der the Re­li­gious Free­dom Res­tor­a­tion Act of 1993.

Gins­burg, So­to­may­or, and Kagan com­prise the en­tirety of the bench’s fe­male justices.

Monday’s de­cision was the most highly an­ti­cip­ated of the Court’s term, as the chal­lenge to the con­tra­cep­tion man­date — filed by Hobby Lobby and Con­es­toga Wood Spe­cial­ties, two for-profit com­pan­ies — was viewed as an­oth­er at­tempt to un­der­cut Pres­id­ent Obama’s sig­na­ture le­gis­lat­ive achieve­ment. It was also seen as the latest ref­er­en­dum on an on­go­ing battle over wo­men’s re­pro­duct­ive rights, an is­sue that con­tin­ues to draw in­tense in­terest in Wash­ing­ton and around the na­tion.

{{ BIZOBJ (video: 5036) }}

What We're Following See More »
AT LEAST NOT YET
Paul Ryan Can’t Get Behind Trump
1 hours ago
THE LATEST

Paul Ryan told CNN today he's "not ready" to back Donald Trump at this time. "I'm not there right now," he said. Ryan said Trump needs to unify "all wings of the Republican Party and the conservative movement" and then run a campaign that will allow Americans to "have something that they're proud to support and proud to be a part of. And we've got a ways to go from here to there."

Source:
STAFF PICKS
Preet Bharara Learned at the Foot of Chuck Schumer
1 hours ago
WHY WE CARE

In The New Yorker, Jeffrey Toobin gives Preet Bharara, the U.S. Attorney for the Southern District of New York, the longread treatment. The scourge of corrupt New York pols, bad actors on Wall Street, and New York gang members, Bharara learned at the foot of Chuck Schumer, the famously limelight-hogging senator whom he served as a member of the Senate Judiciary Committee staff. No surprise then, that after President Obama appointed him, Bharara "brought a media-friendly approach to what has historically been a closed and guarded institution. In professional background, Bharara resembles his predecessors; in style, he’s very different. His personality reflects his dual life in New York’s political and legal firmament. A longtime prosecutor, he sometimes acts like a budding pol; his rhetoric leans more toward the wisecrack than toward the jeremiad. He expresses himself in the orderly paragraphs of a former high-school debater, but with deft comic timing and a gift for shtick."

Source:
DRUG OFFENDERS
Obama Commutes the Sentences of 58 Prisoners
2 hours ago
WHY WE CARE

President Obama has announced another round of commutations of prison sentences. Most of the 58 individuals named are incarcerated for possessions with intent to distribute controlled substances. The prisoners will be released between later this year and 2018.

STAFF PICKS
Trump Roadmapped His Candidacy in 2000
3 hours ago
WHY WE CARE

The Daily Beast has unearthed a piece that Donald Trump wrote for Gear magazine in 2000, which anticipates his 2016 sales pitch quite well. "Perhaps it's time for a dealmaker who can get the leaders of Congress to the table, forge consensus, and strike compromise," he writes. Oddly, he opens by defending his reputation as a womanizer: "The hypocrites argue that a man who loves and appreciates beautiful women (and does so legally and openly) shouldn't become a national leader? Is there something wrong with appreciating beautiful women? Don't we want people in public office who show signs of life?"

Source:
‘NO MORAL OR ETHICAL GROUNDING’
Sen. Murphy: Trump Shouldn’t Get Classified Briefigs
3 hours ago
THE LATEST
×