The Big Picture in the McCullen and Hobby Lobby Rulings

In an earlier blog post, I stated that the treatment of women is the canary in the coalmine with regard to how a society handles human rights. For example, we could have gotten a clue to the violent and cruel nature of the Taliban had we only paid attention to the ways in which they eliminated Afghani women’s rights (yes, some of us were paying attention but I’m talking about the people in charge). Of course, whenever you say this to American women, many dismiss it out of hand as something that would never happen here. American women have the vote, are educated, comprise half the workforce, are in full control of our health and fertility, we are equal! Yet before the 1990s, Afghani women could have said many of the same things.

But what does the situation of Afghani women have to do with us? Why should we care? Because this whittling away of our freedom is happening to American women too, just in a more gradual fashion. Just look at the one-two punch handed down this week in two of the Supreme Court’s recent decisions: McCullen v. Coakley and Burwell v. Hobby Lobby. I could throw in Harris v. Quinn because it also deals a blow to women and families but for now, I’ll stick with the more infamous decisions.

First up is McCullen, a ruling that overturns a 2000 Massachusetts law that imposed a 35-foot protest-free zone on “the public way or sidewalk” near the entrance to reproductive health facilities. The law tried to ensure that women seeking abortions would not be verbally harassed by anti-abortion activists. Writing for the Court, Justice Roberts stated, “Consistent with the traditionally open character of public streets and sidewalks, we have held that the gov­ernment’s ability to restrict speech in such locations is very limited.” What he did not add was that this is the case only when it comes to women’s safety.

While it is tempting to accept what the Court says at face value, we must realize that there is much more at work here. Consequently, just as I do when I am counseling, I look at the big picture (how people are communicating and thinking – the process) instead of at the immediate situation (what they are saying – the content). For McCullen, the big picture is that the court completely ignored the history behind the law and seem to conclude that other buffer zones – zones that are not designed to protect women – are just dandy. In other words, the big picture looks suspiciously misogynistic.

The Court (in a puzzling unanimous decision) seemed to either forget or dismiss the fact that it was the murder of two clinic workers by members of the anti-choice movement – you know, the same group of protesters that brought the lawsuit and they just ruled in favor of – that precipitated the law in the first place. And if they think that these protesters “gently counsel” women trying to obtain healthcare at clinics, then they clearly have never visited one or even watched a video of the “protesting” that takes place. I have and I can tell you that it is anything but gentle. SuperBowl fans yelling at the opposing team after a loss have nothing on these people! The Court also did not appear to consider Massachusetts’ claims that their “less restrictive methods” of preventing clinic patients from being harassed were insufficient back when they originally tried them.

Most telling though is the Court’s acceptance of other buffer zones. Apparently it is Constitutional to have “free speech pens” around political conventions and buffer zones around polling places, circuses, churches, funeral services, and political speeches. Even the Supreme Court has a Constitutionally acceptable buffer zone (a 250 foot one, making the tiny 35 foot zone look puny). Plus, in another recent decision, they were fine with buffer zones around all medical facilities; apparently, it’s just ones around abortion clinics that bother them. Hmmm…..I’m sure this is not the case of course but it sure seems like it’s just women’s healthcare that is not deserving of protection.

Which leads me to the Hobby Lobby decision. In their typical 5-4 split, the Court ruled that closely-held companies do not have to cover contraceptive services that they object to because of their religious beliefs. Here again, the big picture is misogynistic except that in this instance the misogyny passed suspicious and moved right to blatant. The five Justices in the majority didn’t even try to make it look fair.

Such a ridiculous decision (privileging the religious beliefs of corporations – even writing that makes me shake my head in disbelief – over that of employees) could have far-reaching effects for other people, like companies refusing to cover blood transfusions, psychiatric medications and vaccinations. However, to prevent such wrongs from occurring, Justice Alito made it crystal clear that the exemption in the Hobby Lobby decision applies only to contraception, a message that has not gone unheard. As lawyer and writer Jill Filipovic tweeted, “Whew, really glad #SCOTUS made sure its #HobbyLobby decision wouldn’t negatively impact men who need medical care some religions object to!”

Moreover, the religious beliefs Hobby Lobby proffered in their argument did not even make sense. They argued that they didn’t want to cover certain forms of contraception that are “abortifacients” even though any good scientist or biology teacher could tell them that they are not. Did the five Justices skip the high school health class lecture on how to make a baby? If not, then it is evident that this case was less about actual health and more about Hobby Lobby wanting to make sure that their religious beliefs trump not only the religious beliefs of their employees but also women’s right to the healthcare coverage given to everyone else. And the majority of the Court agreed.

How acceptable would it be if we substituted any other large group – perhaps based on race, ethnicity or religion – and said that they alone could not receive coverage for necessary healthcare services because a company didn’t like it? I’m guessing such a circumstance wouldn’t go over well but because this is about women, it’s fine to discriminate. Even some of our allies didn’t seem to truly get it as one article I encountered was crowing with delight that the decision would not lead to legal discrimination against LGBT people. I’m glad about that too but, umm….yay? Should we really be celebrating that this decision was so narrow in scope that it hurts only women (a group that, for the record, includes many LGBT people)?

And the hits just keep on coming because Hobby Lobby itself (Should I assign them a gender now that they’re a person with deeply held religious beliefs? It’s rude to keep calling them an “it” and to do so might hurt her/his feelings.) is perfectly fine with covering Viagra, penis pumps and vasectomies. I guess those are necessary healthcare services though because, unlike women, men need to have sex to be healthy. Plus, Hobby Lobby’s discomfort with abortion only holds true within our borders. As most of their products are made in China, the company (She?He?) clearly finds it acceptable to do business with a country that has no problem with birth control and abortion. As such, it certainly appears as though their firm religious beliefs are somewhat flexible and extend only to expenditures they’re required to make on behalf of women and not to the profits they get from doing regular business. How surprising. I expected better from a company with religious values!

While both of these Court rulings were bad ones, I don’t want anyone to make the mistake of thinking they are solely about abortion or even the First Amendment. Those topics are the content of this debate; the process (the big picture) is much more ominous because it is about the right to control women’s fertility. As scientific evidence shows and as Justice Ginsberg wisely pointed out in her strong dissent to Hobby Lobby, the ability of women to participate equally in the economic and social life of a society rests upon our ability to be in control of our fertility. Women are not free if do not have the right to decide what happens to our bodies. Women are not free as long as others can tell us what to do. Just ask Afghani women.

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