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) }}

MOST READ
What We're Following See More »
FORMERLY THE DEPT’S TOP ATTORNEY
Transportation Sec. Names Special Adviser for Metro System
8 hours ago
THE LATEST

"Transportation Secretary Anthony Foxx has appointed a veteran legal insider with strong personal ties to the Obama administration to serve as his special adviser focused exclusively on fixing the Washington region’s troubled Metro system. Kathryn Thomson, who was expected to leave her job as the Department of Transportation’s top lawyer, instead will stay on as Foxx’s special adviser on Metro oversight." She'll start this week.

Source:
DEATH PENALTY CASE
SCOTUS Finds Racial Bias in Jury Selection
11 hours ago
THE DETAILS

"The Supreme Court on Monday ruled that prosecutors in Georgia violated the Constitution by striking every black prospective juror in a death penalty case against a black defendant. The vote was 7 to 1, with Justice Clarence Thomas dissenting. The case, Foster v. Chatman, No. 14-8349, arose from the 1987 trial of Timothy T. Foster, an African-American facing the death penalty for killing Queen Madge White, an elderly white woman, when he was 18."

Source:
RETRACTED FUNDING
Congressional Report Says NFL Tried To Influence Concussion Study
11 hours ago
THE LATEST

report from House Democrats charges that NFL officials retracted funding for a $16 million NIH study on head injuries after repeated unsuccessful attempts to direct the money away from a Boston University researcher and instead to scientists who might be more favorable to the league. Democrats have been trying to go after the NFL over its handling of concussion science, although the sport's popularity and increased lobbying presence has made that difficult. The new revelations about meddling in the NIH study should offer more ammo. 

Source:
THE QUESTION
How Much Has Trump Loaned His Campaign?
18 hours ago
THE ANSWER

"More than $43 million, although the loans are loans in name only — Trump says he has no intention of recouping the cash."

Source:
NO STAFF IN OHIO
Trump Has the Poll Numbers; Does He Have the Organization?
18 hours ago
WHY WE CARE

While Donald Trump's poll numbers are steadily climbing, he "trails far behind" Hillary Clinton "in organizing in key general-election states. Ohio ... presents both ... Trump's best opportunity to carry a big swing state and reveals his team's steep logistical challenges. After winning the GOP nomination on a tight budget with a skeletal staff ... Trump doesn't have any general-election staff in the state, and senior aides in New York and Washington haven't made contact with the state Republican Party. Efforts to recruit the state's experienced operatives who helped elect" John Kasich "have so far been unsuccessful, people familiar with the matter said." Clinton "has a small team of full-time aides in Ohio."

Source:
×