Who Knew? Hobby Lobby Is a Person

Five years ago this week, on June 30, 2014, for the first time in the history of the United States, the Supreme Court ruled that some for-profit corporations could, like human beings, exercise religious beliefs and exempt themselves from general laws that violate those beliefs. Five justices bestowed upon a handful of business owners the right to deny thousands of their employees the contraception method of their choice otherwise guaranteed under the Affordable Care Act (ACA). Guess who performed this legal baptism?

The Hobby Lobby majority quintet: Justices Thomas, Roberts, Alito, Kennedy, and Scalia. Source: Media Matters, June 30, 2014

Justice Samuel Alito wrote for the majority quintet. His rationale seemed to be:

  • The statute at issue, the Religious Freedom Restoration Act of 1993 (RFRA), doesn’t specifically exclude for-profit corporations as protected “persons” who collectively exercise religion and deserve exemption from laws, so the court relies on the legal Dictionary Act, which states: “In determining the meaning of any Act of Congress, unless the context indicates otherwise … the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
  • Religious exemption requests are taken at face value — without regard for actual scientific evidence. In the Hobby Lobby case, the religious exemption was requested based on the claim that some forms of contraception are infanticide (Plan B, ella, and IUDs). (Such claims are false. Per the Guttmacher Institute, “The weight of the evidence clearly shows that emergency contraceptives and IUDs are not abortifacients.”)
  • The U.S. Department of Health and Human Services (HHS) has not implemented a legally acceptable accommodation for for-profit corporations (our new “persons”). Alito suggested a workaround that the government provide these women contraceptives (with tax dollars) instead. (Subsequent to the decision, an HHS accommodation was reached to allow these closely held, for-profit corporations to use the same opt-out procedure allowed for entities operated by religious groups — e.g., universities, hospitals, and charities).
  • This is a narrow decision that won’t open the floodgates of other religious objections to other laws. (More on this later.)

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Women Harnessing the Law

Happy Women’s History Month! Throughout this country’s history, the law hasn’t been consistently fair across gender lines, classifying women as second-class citizens and making assumptions about people based on gender stereotypes. But throughout that same history, women have harnessed the law to right these wrongs, changing the national conversation around issues as varied as medical privacy, marriage, caring for family members, and sexual harassment.

Let’s meet some of these trailblazers now!

Estelle Griswold

Estelle Griswold, left, and Cornelia Jahncke, of Planned Parenthood League of Connecticut, celebrate their Supreme Court victory.

The birth control pill came onto the market in 1960, but in Connecticut, contraception was outright banned by a law that predated the birth of the Pill by more than 80 years, imposing fines and jail time on people using any type of contraceptive device. Additionally, anyone “aiding and abetting” would-be birth-control users — including doctors and pharmacists — could be punished.

In 1961, in an act of civil disobedience, Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, opened a birth control clinic — and was promptly arrested, prosecuted, and fined $100. Griswold immediately challenged the constitutionality of Connecticut’s anti-contraception law, but it was upheld in state courts. In 1965, however, the Supreme Court ruled that married couples had a constitutional right to make private decisions about contraception.

Griswold v. Connecticut was a landmark case in contraception access — but it was only a first step. In restricting its ruling to married couples, the Supreme Court perpetuated the idea that birth control was only appropriate within the confines of marriage. It wasn’t until 1972 that the Supreme Court ruled that unmarried people, too, had a right to birth control.

Mildred Loving

Richard and Mildred Loving

Bettmann/Corbis via New York Times

Richard Loving was white and Mildred Jeter was black. In 1958, the couple obtained a marriage certificate in Washington D.C., and were jailed for violating Virginia code 20-54, which prohibited marriages between “white and colored persons,” and code 20-58, which prohibited couples from marrying out of state and returning to Virginia to reside as husband and wife.

The Lovings pleaded guilty and were banished from the state, forcing the couple to leave their families and home behind. A series of court battles culminated in the Supreme Court’s unanimous 1967 decision that Virginia’s ban on interracial marriage violated the 14th Amendment’s Due Process Clause and Equal Protection Clause. Continue reading

What the RBG Biopic Is (and Isn’t) About

In July, when Focus Features began ramping up promotion for its forthcoming film On the Basis of Sex, many news sources reported that Felicity Jones would play a young Ruth Bader Ginsburg as she went to court in Weinberger v. Wiesenfeld. In that 1975 case, a father whose wife had died during childbirth fought for the Social Security survivor benefits that he needed to raise his son in her absence.

Weinberger v. Wiesenfeld challenged laws that were stuck in a pre-feminist past, one that made those benefits available to widows but not widowers, as if all marriages were between a man as breadwinner and a woman as homemaker — and only the latter would need to see an income replaced after a spouse’s death.


RBG understood early on that men, too, were hurt by gender discrimination.


It may be a fitting testament to Ginsburg’s role in many important gender discrimination cases that when those news sources looked for clues from a trailer and other promotional materials, they made a false match, concluding incorrectly that Weinberger v. Wiesenfeld would provide the plot for On the Basis of Sex. Vanity Fair, the Washington Post, and Teen Vogue were among the media companies that made the understandable mistake.

In an interview in February, Ginsburg herself had told Forward that the film would focus on another landmark case, Charles E. Moritz v. Commissioner of Internal Revenue. Focus Features confirmed as much when the need for corrections in other, later articles became apparent.

The Moritz and Weinberger cases have a lot of similarities. Both involved male plaintiffs who challenged laws that were based on antiquated ideas of gender roles, notions that were quickly becoming less relevant and less realistic as more women entered the workforce, often turning single-earner households into dual-earner households, and at other times becoming their household’s sole income-earner. Both cases deserve a look — even if it was only by accident that a Ginsburg biopic brought renewed attention to one of them. Continue reading

Due Protections: The Pregnancy Discrimination Act at 40

Ruth Bader Ginsburg in 1977. Photo: Lynn Gilbert

Today, Susan Struck’s political positions are nothing that would stick out in a red state like Arizona. A few years ago, she joined the chorus of support for the once-threatened A-10 fighter jet program at Tucson’s Davis-Monthan Air Force Base. In a 2010 article on immigration, a writer noted her concerns about automatic citizenship for U.S.-born children.

Despite the rightward tilt that would be assigned to her views today, Struck was once at the center of a fight for reproductive justice, a cause taken up by a young Ruth Bader Ginsburg, back when “The Notorious RBG” was still a lawyer for the ACLU. It was that fight that led to Ginsburg’s involvement in the writing of the Pregnancy Discrimination Act of 1978, a landmark piece of legislation that turns 40 this month.


Despite 40 years of protections, pregnancy discrimination hasn’t gone away.


Now retired in an Arizona ranch community, Struck first arrived in the Copper State at the end of the 1960s, when she enlisted in the U.S. Air Force and was stationed at Davis-Monthan. She told Elle in a 2014 interview that she reveled in her newfound independence from the family and church she left in Kentucky. “She went on the Pill and stopped attending confession,” the article recounts, and she spent her free time enjoying her sexual freedom and the chance to experience Tucson’s foothills in a newly acquired Camaro.

Still, Struck wanted more excitement, so she asked to be sent to Vietnam. She was assigned to Phù Cát Air Force Base, where she quickly hit it off with an F-4 pilot — and ended up pregnant. Struck understood that the Air Force gave officers in her situation two choices: get an abortion or be honorably discharged. It was 1970 then, still a few years before Roe v. Wade, but the armed forces had made abortion legal ahead of civilian society. Continue reading

TRAP Laws: Slowly Chipping Away at Abortion Access

Repeal TRAP laws nowThis week marks the third anniversary of the decision in Planned Parenthood Southeast, Inc. v. Strange, a lawsuit that challenged HB 57. This bill, passed by Alabama’s state legislature, required every physician who performs an abortion at a clinic to have staff privileges at a local hospital. Planned Parenthood clinics in Birmingham and Mobile, as well as providers at Reproductive Health Services in Montgomery, would have been unable to obtain hospital staff privileges for various reasons, including a hospital board’s opposition to abortion, requirements that doctors admit between 12 and 48 patients a year to retain staff privileges, and stipulations that the physicians live within a certain radius of the hospital. (Ridiculous, right?)

Luckily, on August 4, 2014, a federal court blocked the requirement that abortion providers obtain admitting privileges at local hospitals — a victory for reproductive rights, but just one small battle in the larger war against abortion access in the United States.


We will not let our state laws be templates for other anti-choice legislation.


Bills like HB 57 are called Targeted Regulation of Abortion Providers laws. TRAP laws selectively focus on medical facilities that provide abortions to make it more difficult for reproductive health care providers to offer abortion services to their patients. In a nutshell, TRAP laws segregate abortion from regular medical procedures, discourage doctors from providing abortion services because of the tedious requirements to do so, and dramatically increase the cost of obtaining an abortion.

Many state legislatures pass these restrictions by arguing that abortion is a risky medical procedure. However, according to the Guttmacher Institute, “abortion is one of the safest surgical procedures for women in the United States. Fewer than 0.05% of women obtaining abortions experience a complication.” Continue reading

Stenberg v. Carhart: “Partial Birth” (NOT)

Dr. Leroy Carhart

Dr. Leroy Carhart sued Nebraska for outlawing a specific late-term abortion procedure, and won.

Seventeen years ago today — June 28, 2000 — the Supreme Court struck down a Nebraska law banning “partial birth abortion,” which the letter of the law described as “an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” *

Pause here a moment.

Is there any doubt in your mind that these words, quoted from the statute, were chosen by lawmakers to sound like infanticide, the killing of a baby between birth and one year? Are you horrified yet? Read on.

By a 5-4 ruling, the majority struck down the law in Stenberg v. Carhartsaying Nebraska’s ban was unconstitutionally vague and lacked a needed exception allowing the procedure to be used to protect the health of the pregnant mother. What? Huh? Infanticide is OK with the Supremes? How could that be? (Dissenting justices used the word infanticide 13 times in their dissents.)


Instead of outlawing abortion in one fell swoop, opponents are going after it one procedure at a time, stigmatizing lifesaving care in the process.


First, what banned procedure are we talking about? In 1992, Dr. Martin Haskell developed the “D&X” procedure, intact dilation and extraction (the medically appropriate name), calling it “a quick, surgical outpatient method” for late second-trimester and early third-trimester abortions. Outpatient is a key word here because the patient does not require an expensive, overnight hospital stay and, as we know, many hospitals do not allow any abortion procedures at all. Dr. Carhart, a surgeon and retired U.S. Air Force colonel, wanted to, and ultimately did, adopt this technique in his medical practice as the best and safest abortion option for some women.

As I read through all 107 pages of the court’s opinion, written by Justice Stephen Breyer and including three concurring opinions and four dissents, what struck me was one basic fact: The Nebraska law prohibited previability abortions** in which a fetus had a zero percent chance of ever being born — no matter what procedure medical professionals used. At that point in its development, the fetus could not survive outside the uterus. The Nebraska law that the Supreme Court struck down, then, had been a tool to demonize and criminalize physicians who decided the best interest of the woman was served by a procedure defined in the medical literature as “intact dilation and extraction,” and by anti-abortion politicians and agitators as “partial birth abortion.” Continue reading

Whole Woman’s Health v. Hellerstedt: Finally, Facts Matter

On Monday, June 27, 2016, the Supreme Court decided that Texas HB2 was unconstitutional, eliminating requirements for Texas doctors to have hospital admitting privileges near their clinics and for abortion clinics to become surgical facilities. Many fine summaries of this landmark decision popped up within hours of the decision. See Planned Parenthood’s press release and “The Court once again makes the ‘undue-burden’ test a referendum on the facts” on SCOTUS Blog.


On Monday, the Supreme Court demanded that laws be supported by facts.


What struck me most about the majority opinions written by Justices Breyer and Ginsburg was the lack of assertion and conjecture so often found in the court’s previous abortion case decisions. Recall Justice Kennedy’s 2007 Gonzales v. Carhart opinion upholding Congress’ Partial-Birth Abortion Act of 2003: “We find no reliable data” that abortion causes women emotional harm, but we find it nonetheless “self-evident” and “unexceptional to conclude” that “some women” who choose to terminate their pregnancies suffer “regret,” “severe depression,” “loss of esteem,” and other ills. “Some women”? Did we really uphold a law based upon this kind of neo-paternalistic, fuzzy thinking?

Not this time out. The Supreme Court put future litigants on notice: Facts matter, science matters, logic matters, common-sense inference matters. Unsupported assertions? Nah. Consultants parading as scientists? Not so much. In workmanlike fashion, dealing with abortion in a frank and unapologetic way, the majority read into law 15 separate District Court findings of fact gleaned from stipulations, depositions, and testimony. Further, the court chastised Texas for “attempting to label an opposing expert witness, Doctor Grossman, as irresponsible.” Breyer writes, “making a hypothesis — and then attempting to verify that hypothesis with further studies, as Dr. Grossman did — is not irresponsible. It is an essential element of the scientific method. The District Court’s decision to credit Dr. Grossman’s testimony was sound, particularly given that Texas provided no credible experts to rebut it.” Wow — The Supremes defend the scientific method. Color me happy.  Continue reading