Those divided lines lay it out. The Supreme Court as we know it is no more. The majority of its members have become suspect as a demographic known to hold conservative Christian bonafides that frame women as inferiors in the household much less in the judiciary. With its recent rulings, the court is bleeding the lifeblood out of the American woman’s personhood.
The court appears indifferent not only to sexism but also to science in the Hobby Lobby case. The science shames the position of those using the word “abortion” to conjure a murderous mushroom cloud driving to a theological bunker those being fed misinformation. Hobby Lobbyists blithely profess that Plan B and IUDs are abortifacients that kill a baby at conception. Never mind that the preponderance of evidence supports the contention that these contraceptives work before conception. They prevent fertilization, not kill fertilized eggs. Yes, even IUDs. They affect the cervical mucus changing the way sperm move so they are usually incapable of fertilizing an egg even if they reach the site. Ella is newer but nothing in the research proves that it is an abortifacient either. Women who take Ella can still get pregnant, which suggests it is not an abortifacient.
Yet, scientific validity of points, though pertinent to the case, was not the constitutional grounds on which Hobby Lobby had to prevail. The majority of the court had to believe that a for-profit corporation has religious rights even to discriminate by sex. All it took was those five true believers. Under their interpretation of the Religious Freedom Restoration Act (RFRA) a corporation can claim religion as its shield to subjugate and control women, especially their bodily autonomy. Religiously, that’s a sin against females and God, but a sin long steeped in male authority dogma that has insinuated itself into every aspect of our culture. Secularly, it violates the civil rights of women. But can we protect women’s rights based on sex as we protect citizens with respect to race?
Consider again for comparative purposes [Sylvia Mathews] Burwell, Secretary of Health and Human Services (HHS) v Hobby Lobby. Hobby Lobby pleaded that the contraceptive insurance mandate under the Affordable Care Act (ACA) substantially burdened its exercise of religion. Therefore, using the protection of the RFRA, Hobby Lobby maintained the contraceptive laws had to be justified by a “compelling governmental interest.” Moreover, the government had to be using the “least restrictive” measures possible to fulfill the intent of the laws which in this instance was to protect the healthcare of women. This is known as “strict scrutiny” examination.
Applying this high level of scrutiny, the justices found the government substantially burdened Hobby Lobby’s exercise of its corporate religious rights and suggested less restrictive measures to provide the contraceptives. Essentially they let Hobby Lobby off the hook for providing what others are required to provide. The justices’ suggested alternate measures were almost immediately challenged and their touted “narrow interpretation” of the decision started falling apart as quickly. Who could have predicted that, except of course, the justices in dissent who did?
Now consider that a female employee of a for-profit “closely held” corporation wants to plead sex discrimination. The corporation she is working for is refusing to follow the insurance mandates of the ACA to provide her the opportunity to choose her contraceptive care from the available selections covered. Her bosses hold sexist religious beliefs about their right to control women’s reproductive healthcare and insist on their right to narrow her choices. There is no legal recourse comparable to the RFRA to defend her rights as a protected class of citizen ensuring her case receives strict scrutiny based on her sex. The equal protection clause of the Constitution’s 14th Amendment will not guarantee her strict scrutiny. It has never been interpreted to grant equal rights on the basis of sex in the inclusive way it has on the basis of race.
What comes next?
Terry O’Neill, President of the National Organization for Women, put the courts on notice for what comes next the same day of the ruling on Ronan Farrow Daily.
“I think actually what we need to do is revive the Equal Rights Amendment to the Constitution. Ronan, I don’t think for a moment that Hobby Lobby could have been decided the way it was or the buffer zone case the Supreme Court announced on Thursday. That would not have been possible if we had women’s equality enshrined in the Constitution. Illinois has taken some steps toward ratifying the E.R.A. and if two more states were to do that as well as Illinois, we might have a very different political landscape. I think the message here is that the response has to be political. We have a politicized Supreme Court. We will meet them on the political grounds. We will defeat them. We need to reverse the 30-year campaign by the right wing to take over the federal courts and that’s my organization’s job and we’ll be working with our allies and I think we’ll succeed.”
The E.R.A. would secure strict scrutiny. Brewing is a revitalized battle for women’s rights the likes of which this nation has not seen since 1982 when the E.R.A. was narrowly defeated by similar political and theological right wing conservatism evident now in our politicized Supreme Court.
Roberta W. Francis, Co-Chair of the E.R.A. Task Force, National Council of Women’s Organization observes that “The ERA would provide a strong legal defense against a rollback of the significant advances in women’s rights made in the past 50 years. Without it, Congress can weaken or replace existing laws on women’s rights, and judicial precedents on issues of gender equality can be eroded or ignored by reactionary courts responding to a conservative political agenda.”
Women are living the rollback we were consistently warned about by our foremothers. Until we put into the Constitution the bedrock principle that equality of rights cannot be denied to women, we will continue to be at the mercy of those who don’t believe we exist as equals and are willing to bypass laws to prove that. We need the E.R.A.
We’re done talking.
This article was cross-posted with permission from The Onslow Times.