RBG On Hobby Lobby: “Access to Birth Control” v. “Cost-Free Access to Birth Control”

August 22nd, 2014

One of the largest obfuscations in the Hobby Lobby debate, which RBG has contributed to, is that the majority opinion rejected the idea that “access to Birth Control” is a compelling interest. This is technically correct, but let’s be precise what “access” means. We aren’t talking here about reversing Griswold, and placing “legal” blocks in the place of access to birth control or other fundamental rights. Or, to put in terms of Casey, there is no “undue burden.”

Justice Alito’s opinion in Hobby Lobby made this point clearly.

Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v.Connecticut, 381 U. S. 479, 485-486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13-354, at 50 (internal quotation marks omitted).

What was at issue is not “access” to birth control, but “cost-free access.” That is employees won’t have to pay additional fees for it.

We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.” §2000bb-1(b)(2).

There is a world of legal difference between “access,” which wasn’t at issue, and “cost-free access,” which the court addressed.  The former constitutes a legal block, and the former is a financial block. Now, I’m sure you can argue that making women pay for birth control is unfair, and fewer women will use it if it is expensive–there are countless findings in the law to this effect. That’s all correct.

But many opponents of Hobby Lobby are deliberately loose with their language, and attempt to give the impression that the Hobby Lobby majority thought that legal access to birth control was not a compelling interest. This is wrong, and a deliberate obfsucation of the facts.

Leading that obscurity is Justice Ginsburg, in her answer to Marcia Coyle’s direct question:

NLJ: In the Hobby Lobby decision, which was written by Justice Samuel Alito Jr., he analyzed whether, under the Religious Freedom Restoration Act, the government had a compelling interest in the contraceptive requirement and had used the least restrictive means to achieve it. But instead of finding or not finding a compelling interest, he simply said he would “assume” the government had such an interest. Should women take comfort in that assumption?

GINSBURG: They should not. They should be very worried about it because he should have said, “Of course there is a compelling interest in making sure women have access to birth control.” They should be very worried about that.

The use of the passive voice, “making sure women have access,” renders unclear who is preventing them from having it in the first place–the government, or the employer. The answer is neither. The case concerned “cost-free access.” I would generally be willing to give the Justice the benefit of the doubt, but her previous comments to Katie Couric make clear that she is feeding into the War on Women meme as the Notorious RBG, and displaying massive amounts of hubris, in her efforts to impact popular opinion outside the Court.

It is to be expected that pundits make such opaque generalizations, but I would expect more from a Justice