The Women Justice Ginsburg Forgot

Previously on Cornerstone, scholars discussed the implications of the recent Hobby Lobby decision for religious freedom and explored the wider function of religion in American public life. This week, we asked respondents to consider why contraceptives specifically are at issue in the case and to examine the lack of consensus on their use among religious and public interest groups.

By: Helen Alvaré

It would be fair to describe a significant amount of the reaction to Hobby Lobby as “frenzied” in a negative sense. The causes cited for the frenzy are varied, but I’d like to focus on those relating to women’s freedom. They are largely based upon Justice Ginsburg’s dissent in the case. 

Claims of the following sort are being made: 

1. Corporations and bosses have been put in charge of women’s decisions about sex and pregnancy.
2. Free access to the drugs and devices at issue in the HHS Mandate (contraceptives and some drugs that can act as early abortifacients, depending upon timing) are central to female freedom, thus giving the state a compelling state interest in forcing even religious actors to go along with the law. 
3. Justice Ginsburg’s dissent accurate captures women’s reaction to the majority opinion.

Responding to the first point, post-Hobby Lobby, both poor and rich women will continue to have nearly unlimited access to birth control if they want it. Women below and even above the poverty line have free or subsidized birth control via myriad federal and state programs, and hundreds of millions of dollars of federal and state grants to low cost Planned Parenthoods and Community Health Centers. Over 90% of employed women with health insurance are provided contraception (and often abortifacients too), even before the passage of the Affordable Care Act. Before Hobby Lobby, and now after, women’s groups have not campaigned for free birth control; rather, interest groups (many who are also abortion providers or supporters) receiving government money for birth control lead the charge. 

As to the second point—there is a sense in which “control” over childbearing by means of contraception has become a proxy in many women’s minds for “freedom.” For reasons far too long to set forth here but brilliantly explicated in this video, the sex, mating, and marriage marketplaces (largely constructed by the separation of sex and children made possible by contraception and abortion) are a harsh environment for women. It is an environment in which non-marital sexual encounters increase as the perceived “risks” (children) appear to decline. Sex easily becomes the “price” of a romantic relationship, and “shotgun weddings” following a pregnancy disappear on the grounds of women’s rights to access abortion. But because in this marketplace, there are so many more uncommitted sexual encounters, and because contraception regularly fails, and because of continuing aspirations for children and relationships, cohabitation skyrockets, non-marital births and abortions increase, and marriage is delayed or foregone (despite women’s fertility patterns and persistent desire for children). Single parenthood by women (and therefore poverty) becomes far more common. 

Of course, in such a setting, contraception seems like the leading edge of compassion! But this ignores the physical side effects and harms many women experience (tens of thousands sue the manufacturers with regularity) and the costs to women of all of the above marketplace results. At the very least, it must be said that women have a variety of opinions about the link between contraception and women’s flourishing, whether because of the relationship-marketplace that contraception has helped to shape, or because of women’s religious or healthcare positions.

Third, Justice Ginsburg’s hysteria—her claims about the “harm” and “havoc” and the threat to women’s “ability to participate equally in the economic and social life of the nation” posed by the decision—are embarrassing. In her haste to achieve the outcome she had in mind all along, she misreads the plain text and the history of the Religious Freedom Restoration Act, effectively concludes that any federal entitlement is a new baseline human right impervious to religious freedom, and swallows whole the frighteningly unscientific arguments advanced by the Department of Health and Human Services in support of the Mandate. (See counterarguments here.)

Helen M. Alvaré is a professor of Law at the George Mason University School of Law, where she researches and writes about family law and the intersection of family law and religion. 

This piece was originally authored on August 6, 2014 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.

Permanent Link: https://www.religiousfreedominstitute.org/cornerstone/2016/6/28/the-women-justice-ginsburg-forgot