Less Than Human

June 30, 2014

I am usually not an alarmist. But the Court’s decision in Hobby Lobby has me alarmed. The holding, quite simply, renders women less-than-human, and our reproductive decision-making less-than-important.

An estimated 99% of cis and trans women in the United States will use birth control at some point in their lives. They will use birth control to regulate hormones, to achieve reproductive health, to avoid pregnancy. The most effective forms of birth control, as well as the types of birth control within their control to use – the IUD and the Pill –require prescriptions and medical involvement, and they are expensive enough that the PPACA’s mandate for insurers to cover them has made a positive impact on even my middle-class pocket book. As Ruth Bader Ginsburg points out in her dissent, an IUD – in its copper form the single most effective form of long-term, hormone free, birth control – costs almost as much as a woman working at Hobby Lobby for minimum wage will make in a month.

Aside from the hypocrisy of Hobby Lobby’s positions – it’s retirement accounts that profit from birth control sales, it’s lack of great paid parental leave – rational Hobby Lobby supporters must face the fact that the abortion rate in the United States has fallen, for the first time in our country’s history, in the past three years – in large part because of wider spread access to safe and effective birth control, and science-based sex education. If we want to reduce abortion, it makes sense to provide birth control as part of basic preventative health care.

This seems to be a narrow ruling, as it only allows employers to refuse to cover contraception. And, the majority opinion stresses that the ruling will not allow racial discrimination in employment, nor other forms of discrimination from which we have statutory protection. We are supposed to find comfort in that narrowness, I suppose; but I do not. The Court has, in a five member majority, has declared that contraception – and women’s access to it – is unimportant. Women’s health care decisions are less than compelling, less than important.

Women are less than human.

Worse, corporations are now somehow even more human than they ever have been.

According to the Alito’s decision, corporations are so human that they can have religious beliefs. In her dissenting opinion, Justice Ruth Bader Ginsburg makes it clear that this is a far cry from previous holdings, which recognized that the “exercise of religion is characteristic of natural persons, not artificial legal entities.” This decision denigrates religious belief, even as it presumes to uphold it. It makes a mockery of the Religious Freedoms Restoration Act, which was passed by Congress, with the support of a diverse faith coalition, as a progressive corrective to previous Supreme Court rulings that denied minority religious freedoms. RFRA was meant to expand ways to believe and practice religion, for members of the Native American Church, for Rastafarians, for Quakers, for Orthodox Jews.

The RFRA has been used by the Court today to expand the rights of a small minority of religious believers, to allow their religious beliefs to trump women’s health care decisions, and to enshrine a view of corporations that makes them capable of being faithful believers. How is that corporations are somehow so human that they can have beliefs that trump my, our, actual human bodies’ needs and desires?

That isn’t the church of a religious believer, that’s the church of capital, my friends.

Renee Cramer is associate professor and Chair of Law, Politics, and Society at Drake University. She teaches Reproductive Law and Politics, and Critical Race Theory, and is currently at work on a book about our cultural obsession with celebrity pregnancy.