On Tuesday, the Supreme Court heard arguments over the ACA’s provision requiring contraceptives like Plan B to be covered as a basic part of health plans.
The implications of this decision for women’s health are huge. Contraception is health care, as surely as any other kind of medicine is, but this decision would put that decision in the hands of bosses rather than the women whose decision it should be. And the strategy on the right tomake it seem like a debate about abortion distorts the facts even further–though it apparently is working on Justice Anthony Kennedy.
It’s obviously also an attempt by the case’s conservative backers to undermine the ACA and limit its reach — a political tactic made apparent by the fact that Hobby Lobby covered the contraceptive options it’s now suing over.
The other question at issue here, though, is one that makes me especially nervous given the record of the Roberts Court in this area: the relationship of employers and employees, and of individuals and corporations.
Hobby Lobby is primarily about whose rights are paramount: a corporation’s or the individual people who work for it. And when you look at it that way, it’s quite likely that Hobby Lobby will win, because when questions like that come before this court, it has a pattern.
The Roberts era has been marked by decisions that advantage big corporations, in the political process and in the workplace. This trend has been obvious since the Bush’s appointment of Chief Justice John Roberts and Justice Samuel Alito, and it has continued to be the case during the Obama administration, with the U.S. Chamber of Commerce consistently seeing cases go its way.
A study from last spring noted that this court is almost unprecedentedly pro-business. In a review of 2,000 cases over the past several decades, five of the ten most pro-business justices are the five conservatives on the court today, with Alito and Roberts in the top two positions.
What could come out of the Hobby Lobby case is a decision that would give broad leeway to employers to claim religious exemptions from laws far beyond the scope of the Court’s decision in Hosanna-Tabor v. EEOC in 2012. It would allow corporations without a religious focus to nonetheless claim to have a religion — as Tom Donnelly puts it, “an unprecedented move that would allow secular employers to effectively impose their own religious views on the employees, even in the face of contrary laws.”
The Roberts Court has stood out the most in its attention to business-related cases, and the pro-business bent of its decisions. Writing about the early days of Roberts’ tenure, Jeffrey Rosen noted that:
Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars.
Hobby Lobby manages to combine the most heated culture-war issues — sexual autonomy and health care — with the kinds of balance-of-power-in-the-workplace questions on which this court’s record is so unsettling.
The concern over Hobby Lobby’s rights being violated stands in stark contrast to the Roberts Court’s record on employee rights being violated by their employer. This includes the decisions in Vance v. Ball State, which made it harder to sue employers for on-the-job harassment, and in the Lilly Ledbetter case, which prevented a woman from seeking remedy for pay discrimination (later legislation closed the loophole opened by the Ledbetter case). One of the most significant cases in this regard is Walmart v. Dukes, in which the court took the retailer’s side, throwing out a class-action suit representing women who were denied raises and promotions. As Pro Publica’s Nina Martin reports, the Dukes decision has been cited hundreds of times by lower courts, with broad implications.
Other decisions have strengthened business in another direction, by reducing consumer power to remedy mistreatment by corporations, from cellphone customers to prescription-drug users. A decision against a class action suit by Comcast subscribers, writes Adam Liptak, is far reaching:
lower courts have already relied on it to reject class actions contending harm from defective trucks, poisoned drinking water, discrimination against disabled workers, misrepresentations in insurance policies and improperly docked wages.
The decision in Citizens United is also a clue to the outcome of this case, as it set a new precedent of extreme deference towards the rights of “corporate persons.”
The disparity in power between corporations and individuals – especially between companies and the people who work for them – is a major factor in an increasingly unequal economy. But instead of acting as a brake on this trend, the Roberts Court’s narrow conservative majority has advanced it.
We won’t know the outcome of the Hobby Lobby case for a while yet, but it’s clear that the court’s narrow conservative majority have already shown their hands on many of the issues it brings up. When it comes to a corporations’ rights or an individual’s, it’s depressingly easy to guess who they’re going to support.
Seth D. Michaels is a freelance writer in Washington, D.C. He’s on Twitter as @sethdmichaels.