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.

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