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

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.