Not Legal Fiction: The Supreme Court and Reproductive Rights

Come and Take ItThe picture on this post was created after last year’s fight over a draconian anti-abortion law in Texas – the one that brought Wendy Davis to national attention and led her to run for governor. It’s based on a flag from the Texas Revolution against Mexico, though that flag lacked ovaries (it had a cannon).

After I heard that the U.S. Supreme Court had concluded that a corporation was able to have religious beliefs and could therefore refuse to cover contraception for its female employees, I dug out the t-shirt bearing this image and wore it to a lunch with other women writers and editors. I had been planning to dress up a bit, but I needed to express my political outrage.

How dare the supreme court conclude that a for-profit corporation has more rights than a human being!

As Justice Ginsburg notes in her excellent and forceful dissent, “Indeed, until today, religious exemptions had never been extended to any entity operating in ‘the commercial, profit-making world.’”

Setting up a corporation confers a number of benefits on business owners, not the least of which is limited liability. That distinguishes them from individuals. As Justice Ginsburg points out, “One might ask why the separation should hold only when it serves the interest of those who control the corporation.”

In fact, Justice Ginsburg’s dissent, which begins on page 60 of this pdf of the opinion,  contains a far better takedown of the majority opinion than I could ever hope to do. Her arguments are built on strong legal precedent and her writing is clear and straightforward.

Early in her opinion, she quotes from a previous ruling of the court on reproductive rights, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 856 (1992), that gets at the heart of the issue:

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.

Up until modern contraception was developed, a woman’s life was always at risk of being derailed by pregnancy. Now, though, we are able to make choices about when – and whether – to have a child. We are also free to have an active sex life without being forced to bear a child as punishment.

When right-winger Rick Santorum was running for president, he made it clear that his goal was not just to overturn Roe v. Wade and outlaw abortion, but also to throw out Griswold v. Connecticut and the right of access to birth control. People like Santorum and the owners of Hobby Lobby want to impose on all of us their religious belief that it’s wrong for women to have sex unless they have babies.

Santorum was a laughingstock as a presidential candidate, but the supreme court majority has made a major step toward implementing his agenda.

While looking things up for this post, I ran across Notorious RBG (that’s for Ruth Bader Ginsburg), a Tumblr set up by an NYU law student. I’m glad to see that the current generation of law students still looks up to Justice Ginsburg.

Back before there were any women on the supreme court, I was a fan of Justice Ginsburg and hoped she’d end up being appointed. She has certainly lived up to my expectations.

By the way, Justice Ginsburg’s dissent minces no words. It begins:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

She notes that she is “mindful of the havoc the Court’s judgment can introduce.” I noticed that there was disagreement among the dissenters as to how much havoc might occur – Justice Sotomayor agreed with Justice Ginsburg about the potential for lots of litigation by corporations claiming that their “sincerely held” religious beliefs prevent them from doing things deemed useful in our society, while Justices Breyer and Kagan seemed to think the decision would have limited effect.

I hope Justices Breyer and Kagan are right, but I don’t think they are.

Most of the time a judge or justice issuing a dissenting opinion will say “I respectfully dissent.” In this one, Justice Ginsburg said only, “I dissent.”

Me, too. And there’s nothing whatsoever respectful about my dissent.



Not Legal Fiction: The Supreme Court and Reproductive Rights — 26 Comments

  1. The 20th century will be known for the moon landing, the integrated circuit, antibiotics–and birth control. We forget that b/c overturned 10,000-100,000 years of socialization, and men just keep getting angrier about that.

    I don’t think young women (and men, because if women can’t get birth control, a lot of women will be back on the chastity wagon) realize that they are close to the fight of their life to keep their reproductive freedom.

  2. I think young people know. It’s going to be one more reason for them to hate us elders: we did not stop this.

    As to this decision, I have long said that the Roberts Court is working on being the worst since the Taney Court. There have been a long line of political decisions from the Roberts Court, and its predecessor, the Rehnquist Court, and in all of them, not just plaintiffs and defendants, but the law itself has been the loser. If our highest court hands down judgements based on political whim rather than a fair reading of the law and and conscientious legal reasoning, there is no law, only the whim of the Court.

    Cleaning up the work of the Taney Court required two constitutional amendments and a change in the composition of the Court, and this seems likely to be true of the Roberts Court as well.

    • Excellent points, all. I don’t think this ruling is as bad as Dred Scott, because I think it would be hard for any decision to be that bad, but I fear you’re right about where this court is taking our democracy.

      • Glad you liked my points.
        I agree that this is not, yet, Dred Scott II. But they’re working on it. Notice how quickly the Court majority moved to expand this supposedly limited decision.
        What conservative activists are aiming with these series of cases is Griswold, which finds a right to privacy in the Bill of Rights. The Fourth Amendment addresses search and seizure, fine. But the Framers didn’t think about the invasion of people’s bodies–it wasn’t an issue, or even possible, when the Bill of Rights was written.
        The court could also directly overturn Roe v Wade, or vastly weaken the already weakened labor unions by outlawing the agency shop.
        Time for the revolution, maw. (Hey, I’ve been reading The Hunger Games.)

        • Yes. That’s why I liked Justice Ginsburg’s dissent. She speculated that they would expand it and they are likely to.

          I hope they don’t get a case that allows them to attack Roe, not to mention Griswold. Brrr!

  3. Not to mention having opened the gates for all sorts of other injustices.

    How long will it be that when a boss’s religion forbids women to work at all, or to be in a position of authority over men, trumps women getting a job and promotions?

    How long will it be when a boss’s religion tells him that African Americans are inherently inferior to white people / Asian people / Middle Eastern peoples that there is no need to hire African Americans at all — or just have them work for nothing? In fact, that was the law of the slave confederacy states.

    Huge corps are privately held, and that includes Bloomberg, Walmart, Cargill, Koch, Dell, Heinz, Bechdal, etc.

    This is a huge overturn of the civil rights amendments and rulings.

    There are so many parts of the camel, and so many different camels’s noses under the tent that the tent is very close to becoming the camel’s house again, and entirely closed to everyone who isn’t a boss, i.e. the 1%.

    Love, C.

    • The rights of women are most at risk, since we never passed the Equal Rights Amendment and the test for gender discrimination is not as strong as the test for racial discrimination.

      The good news is that the worst decision ever made by the supreme court — Dred Scott — was eventually overturned.

      • Yeah. But the amount of suffering directly caused by Dred Scott, as well as the North now being convinced that the South was making war on them, imposing their states’ rights upon the North, the knowledge there were white skinned, blue-eyed, blonde slaves in the south, which further meant that slave catchers could come anywhere and claim anybody was a slave — and there was NO legal recourse for the one accused of being a slave — it made the war inevitable. There were strong factions — not just the abolitionists — who now were talking about the NORTH seceding.

        It’s like those taking the long view and attempting to convince us that slavery would eventually gone away without the war don’t think of what it means for those who would still have been living generationally under slavery. How many more families broken up to never see each other again? How many more women raped? How much more, O Lord, How MUCH MORE! Anyway, slavery wasn’t going away. It was their economic, political and moral system, and they were determined to expand it everywhere — and the North knew that.

        And right this minute, with crazy incarceration, unfair lending practices, voter suppression etc., this war is as much about people of color as it is about women.’

        We have to hang together. We’re all going under together.

        You might find some interest in this perception by a black man:

        Love, C.

          • A few of the more blatant nutbars have already said that women do not need to vote. (Nor black people, nor gays, I would think, as well.) That’s the final barricade, that we have to all stand and die on. Once we lose the franchise, it’s burquas and clitoridectomies all around.
            What gives me hope is my daughter. And all the women in the US armed forces. They have rights, have fought for them, and will not tolerate having them taken away. They already know that these colors don’t run. They are young and will outlive these creeps.

            • People like your daughter are important, and so are the young women demanding that colleges address sexual assault. The young women aren’t sitting around and the five justices who made this atrocious decision represent a minority point of view. What we have to do is get these extremists out of our government.

    • That’s an excellent summary of everything wrong with the opinion. Even if you accept that religious beliefs should have any place in this argument — and I don’t — the idea that someone’s false belief that a form of contraception is like abortion is sufficient is absurd legally.

  4. One of the things that scares me is how this precedent will impact the areas of the country where a Catholic hospital conglomerate has taken over the only local hospital. There is already a problem with some of these hospitals not offering the standard of care to women who develop ectopic pregnancies or pregnancy complications. A modest extension of Supreme Court’s decision seems to me to say that that is just fine because these women can be referred to another hospital, never mind that transport under those circumstances can be dangerous to the woman. A reading of the second decision seems to suggest that in fact the Court’s Catholic brotherhood wouldn’t even agree that the hospital has the obligation to refer.

    My water broke at just shy of 23 weeks. I have had the experience of believing that, in order to get the care that I needed, that I would have to get in a car with my husband and drive, possibly across State lines, while leaking blood and amniotic fluid. No one, ever, should have to experience that kind of terror. Why do I have the feeling that this court wouldn’t even see that as a problem?

    If we haven’t had a case like Savita Halappanavar’s here already, we will, and more than one.

    • Another really good point. There are lots of places where the only hospitals are run by the Catholics. And there was the case of the nun on the board of a hospital in Arizona who was excommunicated because she approved of giving a woman an abortion in a life-or-death situation. So it is a problem here.

  5. In the meantime all the structures are now firmly in place for armed revolt should anyone attempt to roll back these forms of control of women and the other members of the 99%. Seriously worse shyte is coming down the line, as it has every year since Reagan took office.

    I am not celebrating a damned thing today (July 4th).

    Love, C.

  6. The Fugitive Slave Act, which came first as part of the compromise with the slave power made by the north for California joining the Union as free soil — as California voted itself to be — put the country on fire, as a dreadful nexus of states’ rights violations, as the north saw it. Taney’s Dred Scott ruling — a deliberate test case — shoved it into secession. One side or the other was going to. But it was the slave power that was ready. The Fire Eaters had been carefully preparing secession for decades, and particularly since 1850. They held two different secession conventions in Nashville during the California debate period. The north, none, though it was spoken of. The only secession convention ever held in the north was at the start of the war of 1812, which New England did NOT want to have, but both the south and the west were determined to have.

    Could it be possible that Hobby might possibly unite the non-crazies into some serious activism? Like forming a new and effective party, as happened back then?

    Love, C.

    • The “Fire Eaters” may have been prepared to secede in the south, but they badly misjudged what was necessary to build a functioning government or society. I suspect that even if they had won the war, their territory would have been limited to what we call today the Deep South. The West would have stayed in the Union and Texas would probably have gone independent again, leaving the Confederacy with states that would be even poorer. And I doubt slavery would have lasted another 50 years. That is, I don’t think they could have won even if they had won. Which should give pause to the Tea Party types, but apparently doesn’t.

      I’d be happy if this latest supreme court nonsense galvanized the women in this country. If I’m remembering my statistics correctly, there are 56 million single women of voting age in the US and they vote progressively when they vote. If we got rid of the anti-woman politicians, we’d also be rid of the folks blocking appropriate government action on climate change, not to mention economic issues and immigration. It would be a good start.

  7. Thanks for all the terrific comments and links here! I have been getting pretty nervous about these developments to privilege corporations over the rights of actual people. And the revving up of attacks on women’s rights. I, too, live in a small city where the only hospital is owned by the Catholics (they took over the other competing hospital), and now they are buying up a lot of doctor’s groups. Then they don’t want to pay taxes to the community. But I digress…
    As an instructor of creative-writing at the local university, I’ve noticed a sort of self-imposed reproductive censorship in student stories, possibly reflecting the larger cultural trends. 20 years ago, if a student wrote about a young woman getting pregnant accidentally (a common theme), there was a consideration of abortion as an option. That is never mentioned in such stories now — almost as if the writers know they will meet disapproval. Is anyone else disturbed by this?

    • I’m very disturbed to hear that. You should recommend that your students see Obvious Child and react to it! It was such a relief to me to see a movie that dealt with abortion as the rational choice.