Lady in Hobby Lobby Sees Same Man Popping Up Over and Over Again
After Hobby Lobby
The Supreme Court term wrapped upwardly squeamish and cracking final week. Unless you are a woman.
Photo analogy past Slate . Photo by Tim Sloan/Getty Images.
For the kickoff time in my retentiveness equally a reporter, there was a men'south term and a women's term at the U.Southward. Supreme Court. The men'south term ended last Monday, with a pair of split decisions in Burwell five. Hobby Lobby and Harris v. Quinn, and a lot of mumbling on both sides of the political spectrum most the fact that—as Supreme Court terms go—this was a adequately uncontroversial one, marked by high degrees of agreement and consensus-seeking by the justices, and minimalist, incremental changes where there might have been tectonic shifts.
Non and so, for women, who—almost a week afterwards—are all the same reeling over the implications of the Hobby Lobby decision for contraceptive care in America; nevertheless parsing the emergency injunction granted in the Wheaton Higher case but iii days later the Hobby Lobby ruling came down; still mulling whether the Hobby Lobby conclusion may prove a boon for women in the long run; and generally trying to understand how a term that was characterized equally minimalist and undramatic by many male person commenters, even liberal male commenters, represented a tectonic shift non just for America's women, but for the three women who actually sit up there and do their jobs at the high court.
To exist certain, there are certainly a not bad many men who have evinced shock and horror at the way the term shook out for women's reproductive and economic freedoms, and a good many women who are delighted at the way things turned out. Only it seems notable to me, and rather unprecedented, that a Supreme Courtroom term that more or less ended for men'south bug (to wit, all ramble issues that don't implicate gender) last calendar week still rages on for women in the printing, in the political discourse, and in the legislatures.
It near doesn't warrant explaining yet over again why the term was such a disaster for women'due south rights and freedoms. One demand look no further than the trifecta of the abortion buffer-zone case, McCullen five. Coakley; Burwell v. Hobby Lobby; and Harris v. Quinn, which adamant that for purposes of the "bureau fees" dominion, home health care workers—90 percent of whom are women and minorities—are not really public employees, because the dwelling is not actually a workplace. And the fact that the female person justices dissented from two of the above cases in the strongest terms is rather remarkable. But looking at the 3 cases together, it'southward difficult not to observe something nigh more remarkable: In the bulk opinions in all three, in that location is scant attention paid to existent women, their daily lives, or their interests, and bully mountainous wads of attention paid elsewhere. It's nigh as if the court chose not to run into women this term, or at to the lowest degree not real women, with real challenges, and opted instead to offering actress protections to the delicate women of their imaginary worlds.
This fact has been proven empirically already, in a quick and dirty word count conducted by the Washington Mail's Emily Annoy in the aftermath of Hobby Lobby. It seems that in the 49-folio bulk opinion penned past Justice Samuel Alito, the word women or woman appears a mere 13 times (excluding footnotes and URLs), whereas in the 35-page dissent by Justice Ruth Bader Ginsburg, the word shows upwardly 43 times. This may seem a rather crude measure of the relative importance of the interests in the two opinions, simply information technology reflects, every bit Badger observes, Ginsburg'due south solicitude not just for the interests of the religious employers in the instance, but also for the women who work for them and for the women across the country who need affordable contraception for all sorts of economic and medical reasons the bulk chooses never even to address. Indeed, it seems to me that had the Alito opinion really engaged with the mass of information and factual assay showing why there is a compelling interest in treating contraception as critically important, the national media conversation around the case might have unfurled in a far less Beavis and Butt-Caput style. It's hard to elevate the conversation most the example to a plane that rises beyond loose women and the ease of access to drugstore condoms when the court declines to model what such an elevated conversation might look like.
The aforementioned is truthful in Harris 5. Quinn, where, as multiple court-watchers have already indicated, the bulk opinion by Alito starts from the legal presumption that the (mostly poor and minority women) who intendance for the ill and elderly at home are simply different creatures from the firemen and teachers who are usually represented by public-sector unions. They are doing, as Robin Marty explains, "women's piece of work," and they are doing it in the habitation. Equally a issue, the court crafts a whole dissimilar category—"fractional public employees"—to describe their jobs.
And the same is true in McCullen, equally I suggested final week, when the case came down. In the courtroom's view there is something different about these abortion-seeking women, fundamentally fragile and uncertain, that makes the bulk of the court specially inclined to accept the argument that they only need more information—helpfully provided by gentle "sidewalk counselors"—before they tin fully capeesh the enormity of their decisions to terminate pregnancies. Reading the concurrences in McCullen, one tin just imagine what Alito and Justice Antonin Scalia would think of an statement that holds that men entering a gun shop to purchase an attack-style weapon would besides benefit morally and psychologically from gentle sidewalk counselors warning them that they may exist contributing to the end of a life or that they may come to regret their decisions. The implication that women demand counseling and men demand to be left solitary to make bold, manly decisions is difficult to escape later on McCullen.
Which leads us dorsum to Hobby Lobby, a case that rests tenuously on the premise that an employer's choice to offer a menu of comprehensive health care services to all employees is the same as his choice to buy a condom for his secretary. What is missing from the Hobby Lobby decision altogether—beyond the economic disparity and public health arguments I mention above—is the very notion of the woman herself as moral circuit billow, every bit an agent of her own ethical choices and preferences, whose decision to obtain an IUD, or a prophylactic, or a forenoon-later pill is a fully autonomous moral choice that supplants the spiritual choices of her employer. Again, it's almost impossible to escape the decision that Hobby Lobby, McCullen, and Harris all rest on the idea that women are in effect children with (fractional) paychecks, and that their choices are to be 2nd-guessed and gently redirected.
All this would be hard enough, were it not for the fact that the five-justice majority at the court seems determined to offering all this help and chivalry in the face of the strenuous objections of their female colleagues who seem, at the close of this term, to have spent a good deal of energy howling into the current of air that women need less delicate handling and more bones freedoms. The final irony is that the quality of "empathy"—the much maligned, squishy solicitude that is so often associated with female justices—is the quality that seemingly drove each of the decisions higher up. Information technology wasn't so much a disharmonism of rigorous constitutional values that determined the outcomes in Harris, McCullen, and Hobby Lobby. Information technology was simply a strong identification past the majority justices with the values that were arrayed in opposition to women's freedoms and economic equality: the poor home-care worker, forced to support the speech communication of a union; the beleaguered sidewalk advisor denied the opportunity to counsel and persuade; the sympathetic religious employer, forced to pay for something his organized religion cannot tolerate. Nobody disputes that in each case those values are heartfelt and compelling. But the nigh consummate erasure of the values on the other side is a constitutional lid trick if ever at that place was i. It's bad enough that the term ended and then poorly for women. That it happened because of an abundance of empathy—the quality that allegedly makes the states women bad judges and justices—is kind of the icing on the cake.
Source: https://slate.com/human-interest/2014/07/after-hobby-lobby-mucullen-and-harris-v-quinn-the-men-of-the-supreme-court-leave-women-reeling.html
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