Hobby Lobby analysis: Where fiction becomes fact

Time to revolt against theocrats, repeal RFRA

Annie Laurie Gaylor
Co-President Freedom From Religion Foundation

"By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required." — Justice Samuel Alito

alg-cjIt was all over by page 2 of the Supreme Court's decision yesterday favoring the fundamentalist Christian owner of Hobby Lobby Stores and the Mennonite owner of Conestoga Wood Specialties.

Justice Samuel Alito, joined by his ultra-conservative, Roman Catholic brethren, actually wrote these jaw-dropping words:

"[W]e must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions."

These fanatical businessmen believe some forms of the birth control pill and IUD are abortifacients (substances inducing miscarriage), despite the science, the reality, the amicus brief of the College of Obstetrics and Gynecology and 21 other medical professional groups thoroughly debunking this misrepresentation.

Steeped in Catholic disapproval of contraception, much less abortion, Alito and his four brethren probably also prefer to make believe that an IUD is an abortifacient. But even if Alito didn't agree with the plaintiffs, he ruled that what matters is not reality, but whether a religious person "believes" even in the face of reality that a fiction is a fact.

The decision was decided on the basis of the Religious Freedom Restoration Act, passed in 1993, which held that the federal government is prohibited from taking any substantial action that "substantially burdens the exercise of religion," unless it's the least restrictive means of serving a "compelling government interest." RFRA actually refers to "persons" in the law, but under the Citizens United line of "reasoning," for-profit corporations are now people, and seemingly have religious feelings to offend.

Alito warns that if the corporations flouted the Affordable Care Act's contraceptive mandate, they could "pay a very heavy price, as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would," he adds.

Yet he gives no truck to the fact that, for instance, Hobby Lobby did not seek a "grandfather clause" for its health care coverage, as was its right as a company that was offering coverage prior to the AFA. Clearly, they blew it, but Alito won't admit this.

He also gives short shrift to the argument of his "sisters" on the Supreme Court — Ginsburg, Kagan and Sotomayor — who pointed out during oral arguments that if the companies didn't want to comply with the law, they could forgo providing health care benefits and instead pay the appropriate tax (erroneously referred to by the companies' attorneys as a "penalty").

Alito even admits in his decision that perhaps this would cost the companies less money than providing health care. But he claims that Health and Human Services didn't mention this in its briefings, so the court's not allowed to take that into account.

Most damning, Alito admits: "As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required."

Even Alito admits RFRA goes "far beyond" what is required. The Freedom From Religion Foundation so far is the only group actively sounding the alarm about RFRA. Our brief, written by distinguished attorney Marci Hamilton, was the only amicus brief submitted before the high court stating the obvious: that Hobby Lobby is relying on a statute enacted by Congress that' unconstitutional.

While clearly this Supreme Court isn't going to overturn RFRA, Alito's own words should give Congress impetus to repeal a law that is being used to deny true religious liberty in the name of phony religious liberty. Excessive "liberty" is otherwise known as "license" — or religious privilege.

Lost in the meaningless verbiage of Alito's ruling is the decision's human toll. He and his Catholic cohorts may care about ova, but the rest of us care about real women. We thought the battle to access at least contraception was largely won by the late 1960s (even though many teenagers, and women in rural counties served only by Catholic hospitals and clinics, are still fighting for this right). But fundamentalists and conservative Catholics are working in concert now, not only seeking to overturn Roe v. Wade (1973), but apparently Griswold v. Connecticut (1965).

Justice Ruth Bader Ginsburg's dissent gets real. "It bears note in this regard that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage."

When women cannot control if and when they become pregnant, how many pregnancies they carry, they can ultimately control very little about their lives. It's no coincidence that women reentered the workforce in huge numbers during the second wave of the feminist movement after the birth control pill had been introduced and Comstockian laws declaring contraceptives to be "indecent articles" were overturned, leading to routine access to contraception as part of good medicine.

The backlash against contraceptive access is part of the same old song and dance led by patriarchal religions worldwide: kinder, kirche, küche. Keep women barefoot and pregnant. Control the means of reproduction and you control women, as Gloria Steinem has oft stated.

The high court has ruled that contraception — the right to plan families and avert unwanted pregnancies — is not necessary for women's health. One in four U.S. women died due to pregnancy or childbirth in the 19th century. It is a lie for the Supreme Court to aver that birth control is not preventive medicine. The court is practicing reckless medicine without a license.

We cannot let a male, Catholic, ultra-conservative majority on the court turn the clock back a century. Join FFRF in working now for the most practical remedy for this pernicious decision — the repeal by Congress of RFRA.

None of our civil and human rights, established after decades and decades of struggle and education, will be safe from the reach of religious bigots until RFRA is overturned.

Photo: Christopher Johnson, "A Better Life: 100 Atheists"

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