Wherever the Supreme Court is taking us, it’s scary as hell.
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“You can’t make an omelette without breaking eggs, is what he says. We thought we could do better.
Better? I say, in a small voice. How can he think this is better?
Better never means better for everyone, he says. It always means worse, for some.”
—Margaret Atwood, The Handmaid’s Tale
A day after the United States Supreme Court ruled, in Burwell v. Hobby Lobby, that certain corporations are essentially very big people who might hold inviolable religious beliefs, the internet is flush with strong arguments that the 5-4 decision was illogical, tortuous and/or inexplicable. If you only read one scathing indictment of the reasoning by which Justices Alito, Roberts, Thomas, Scalia, and Kennedy decided the majority of American corporations may legally opt out of providing full health-care coverage for their employees, do make it Justice Ginsburg’s dissent—which even Kennedy called “respectful and powerful.” It’s a testament to the honorable old gal’s self-discipline that she didn’t conclude with “Boom! Lawyered!”
Between the Hobby Lobby decision and last week’s blow to “buffer zones” in front of health clinics that provide abortion care, there’s only one reason why I am not currently terrified of what the Supreme Court might decide next about my reproductive organs: I barely have any left. After a hysterectomy last fall, I’m down to just ovaries, unmoored from all other baby-making apparatus, quietly releasing and reabsorbing eggs that shall never meet sperm. I suppose that if we went full Gilead (the misogynistic, totalitarian society of Margaret Atwood’s head-smackingly prescient The Handmaid’s Tale), the folks in charge might want to harvest the leftovers before I’m exiled to the colonies. But I’m 39, so they’d best move quick.
In the meantime, not having a uterus provides a marvelous sense of freedom. I don’t have to worry about whether my employer subscribes to a religion that insists, based on zero scientific evidence, that intrauterine devices and emergency contraception cause the “death” of fertilized eggs. I don’t have to wonder how I’ll steel myself to walk through throngs of plastic-fetus-throwing “sidewalk counselors,” should I ever need an abortion. I can have all the sex I want, and work for any employer who offers me a good deal, with no fear that my body will at some point play host to a heady mix of human tissue and theoretical potential that will, regardless of how I respond to that challenge, force a series of invasive doctor visits and major life decisions.
Is this what it feels like to be a man? It’s kind of exhilarating.
Nevertheless, I’m frightened by these decisions, for reasons that have nothing to do with my ex-uterus, nor even concern for my loved ones and fellow citizens who are (or will be) capable of bearing children. It would actually be the best-case scenario if these attacks on reproductive freedom were chiefly about punishing women for having sex, because the alternatives are that the Supreme Court of the United States is deliberately hauling us toward a straight-up theocracy or a(n even more pronounced) corporate oligarchy.
It’s been widely noted that the five justices issuing a decision that primarily affects women’s health are all of the male persuasion, but let’s also take a moment to note that those same five men are Roman Catholics. Granted, even the Pope acknowledges that most Catholics don’t adhere to the church’s teachings on contraception, and Justice Sotomayor’s faith didn’t stop her from dissenting, alongside the other women on the court. Surely, judges representing the highest law of an ostensibly secular land are capable of separating their own private religious beliefs from the best interests of all American citizens.
Still, the all-male, all-Catholic majority didn’t merely opine that, in accordance with the Religious Freedom Restoration Act of 1993, closely held corporations must be allowed exemptions from laws that offend their religious principles. Ginsburg’s ass-kicking dissent makes it abundantly clear why that would be (and indeed, this decision is) folly. Citing real cases in which a restaurant owner claimed serving black patrons was against his religion; born-again Christian health club owners refused to hire “fornicators and homosexuals” (among others); and wedding photographers declined to shoot a lesbian ceremony, Ginsburg wonders, “Would RFRA require exemptions in cases of this ilk? And if not, how does the court divine which religious beliefs are worthy of accommodation, and which are not?” Boom! Also, she asks, what about members of religious minorities whose sincerely held beliefs proscribe blood transfusions, vaccinations, antidepressants? Will they be held exempt from covering all of their employees’ essential health care?
Oh, don’t be silly, says Justice Alito. “We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’” In his concurring opinion, Justice Kennedy adds, “the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” Why not? Because the Hobby Lobby decision, Alito assures us, is “concerned solely with the contraception mandate.”
In other words, we have no plans to indulge any Jehovah’s Witnesses, Scientologists, or Christian Scientists who come calling, but we’ll torture the law and screw women over to protect “sincerely held beliefs” that just happen to track with the proffered opinions of 67 Catholic theologians and ethicists—regardless of actual evidence offered by experts in reproductive health. No reason.
I mean, maybe there honestly is no religious reason for this puzzling decision. Maybe Alito, Scalia, Thomas, Kennedy, and Roberts’s faith had nothing to do with their special consideration for the fundamental belief that life begins at conception, and for the falsehood popular among conservative Christians that common forms of contraception are abortifacients. But if the problem here isn’t activist judges marrying church and state, we’re left with an equally repulsive alternative: That this whole fucking thing was about furthering our acceptance for corporate “personhood.”
“At a time when economic inequality is reaching record highs and support for big business is at an all time low,” writes Sally Kohn at the Daily Beast, “the Supreme Court has consistently seen fit to confer more and more power and privilege to already powerful and privileged corporations.” Although Alito takes pains to distinguish between closely held corporations and faceless public behemoths people find more frightening in the abstract, the reality is that more than 50 percent of American workers are employed by a company that just developed the ability to hold sincere religious beliefs.
As Ginsburg put it, “‘Closely held’ is not synonymous with ‘small.’” Mars, Inc. gets to have Constitutionally protected religious principles now. Cargill gets to have Constitutionally protected religious principles. Yesterday, The Wall Street Journal published a list of several companies expected to take advantage of the opportunity to save money by denying potentially child-bearing employees a full range of health-care options.
“Just what we need in America,” writes Kohn, “more corporations with more excuses to not play by the same rules that ordinary Americans have to obey.”
Whether the conservative justices on the Court are aiming to achieve a patriarchal dystopia, a Christian theocracy, or a privately held nation–for all I know, it’s all three—fans of democracy should be deeply unsettled by Burwell v. Hobby Lobby. “The Court, I fear, has wandered into a minefield,” says Justice Ginsburg at the close of her dissent. I fear they’ve dragged the whole country into one.