The 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.