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Backstage in the Hobby Lobby case

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When the SCOTUS Sebelius v. Hobby Lobby decision was announced last week, we were told it was a narrow decision that only applied to a small number of “closely held” corporations, and only to a handful of female contraceptives types.

Days later in the case of Wheaton v. Burwell, we – and the three female associate justices of the Supreme Court – learned differently.

So what’s going on? To understand, we have to go backstage.

My theory – and I’d bet a lot of money on it – is that to get a fifth vote in favor of Hobby Lobby, Justice Samuel Alito and his conservative brethren had to promise to carve the majority ruling very narrowly in order to win five votes. Whomever the swing vote was to be, either Anthony Kennedy or John Roberts (or both), he had to be assured that the controversial ruling would not affect other medical procedures or employee rights.

Justice Alito probably had to craft and re-craft his draft opinion until the holdout(s) would sign on. This is a common practice in the Supreme Court and there’s nothing wrong with it, as long as the majority justices honor their own ruling in future cases.

In their dissent in the Hobby Lobby case, the three females on the Court, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, predicted that the allegedly narrow ruling would be used to create a wider precedent.

Just days later, the Wheaton decision proved them correct.

Now the only question is how wide and how damaging to women’s reproductive rights.

One last point about the public reaction to the case. Some in the media and the general public have framed the case as women demanding “free birth control” from their employers. But employees generally pay a premium (albeit a discounted one) for their employer-provided insurance. That means the benefits are not “free.” And if the contraceptives in question or the doctor visit needed to get the prescription require a copay, that is a further cost to the female employee.

So it wasn’t a case of wanton women demanding free birth control against the religious beliefs of a small family-owned company. It was a case of women demanding that the insurance they pay to cover their reproductive medical needs, and corporations of every size and type denying those needs for their own reasons.

Or in simpler terms, a man who works for Hobby Lobby can be covered to treat his low testosterone, but a woman who works there can’t be covered to protect herself from his newly elevated testosterone.

Will that hypocrisy expand to other areas of employee rights? Only time and SCOTUS will tell.

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