SCOTUS: All freedom not created equal
By Kat Heiden
FFRF awarded Kat $2,000 for her essay.
The New York Times headline sums it up nicely: “Supreme Court Rejects Contraceptive Mandate for Some Corporations.” Within this straightforward statement lies an important key word: “Some” suggests that the court’s decision applies to certain companies with certain characteristics.
In this case that defining characteristic is the business owners’ religious beliefs. The court’s decision ensures that these individuals’ religious preferences are maintained. In doing so, it violates the freedom of countless female employees by preventing them from accessing the contraception that, per the Affordable Care Act, they have a legal right to obtain.
The Burwell v. Hobby Lobby decision suggests that religious freedom is somehow more valuable than workers’ freedom to make decisions about their own health and futures. That alone is a fatal flaw in the decision, but there are several others. In a country where we pride ourselves on “liberty and justice for all,” the decision applies that liberty selectively, with religious business owners as its “chosen” people.
If religious employers refuse to include contraception as part of employee health plans, many women can no longer make a choice about whether or not to obtain it. They are stripped of this freedom because without insurance, contraception can be prohibitively expensive. For example, according to Planned Parenthood, an intrauterine device (one of the most effective forms of birth control) can cost $500 to $900 if paid for entirely out of pocket. For a woman making minimum wage, as many workers at retail stores such as Hobby Lobby earn, this could mean nearly a month’s wages.
A woman’s choice to obtain birth control does not infringe on anyone else’s freedom. No one will be forced to use birth control. Before, during and after the woman’s choice, the freedom to practice religion will remain intact. Disturbingly, the decision suggests that the imposition of one’s religious beliefs on others is a freedom to be protected. Burwell v. Hobby Lobby not only applies the concept of freedom unequally, it relies heavily on the idea of corporate personhood to underscore its religious favoritism. As Justice Ruth Ginsburg noted in her dissent, “the court’s expansive notion of corporate personhood invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.”
The majority opinion justifies corporate personhood by stating:
Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.
The above passage shows selective freedom at work. The majority defines “people” as shareholders, officers and employees and justifies corporate personhood as a way to protect those people’s rights. Yet the employee’s right to contraception is denied. By treating employers differently from employees, the court adheres to only a select portion of its own corporate personhood definition. The Supreme Court is a public body whose purpose is to better define, interpret and apply law in service of all Americans. It cannot select which Americans it serves. In principle, the court makes our country freer by ensuring that all laws are just. Burwell v. Hobby Lobby does not strike down an unjust law or create a new one. It simply chooses the application of one existing law over another. The Religious Freedom Restoration Act is favored over the Affordable Care Act. In a more egregious misappropriation of the court’s power to apply the law, RFRA is also essentially chosen over the First Amendment’s Free Exercise Clause. Justice Ginsburg speaks to this point in her dissent:
The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993, dictated the extraordinary religion-based exemptions [to the Free Exercise Clause] today’s decision endorses.
Decisions like Burwell v. Hobby Lobby favor some Americans’ freedoms over others, which is extremely problematic. Freedom is the core belief that unites our United States, and it is too precious to be dispensed unevenly, especially by the highest court in the land.
Kat Heiden, 29, Sherman Oaks, Calif., is pursuing an M.A. in communications and leadership from Gonzaga University in Spokane, Wash. She previously earned a B.A. in screenwriting from Chapman University in Orange, Calif.
