There are two competing narratives about the Hobby Lobby case and how big of a deal it is. To hear the all-male Supreme Court majority and many legal analysts tell it, this is a decision of limited scope. It will result in a minor inconvenience for a small number of women who work for certain employers or have certain insurance plans or wish to use certain forms of contraception. It may not even be about women at all — some observers say it’s legal maneuvering designed to affect the status of corporations and the fight over Obamacare, not sexual politics.
Then there’s my own interpretation, which is not that of a legal scholar but is shared by Justice Ruth Bader Ginsburg, who knows a few things about the law. It’s most accurately expressed as an outraged scream, sort of a combination groan-wail, issued while beating my fists against the desk on either side of my laptop. A more articulate version goes like this: Hobby Lobby is actually a decision of “shocking breadth,” a blow to reproductive rights, and a revelation of the total disregard that a majority of American lawmakers and legal power-brokers have for the lives of women.
Justice Samuel Alito’s majority opinion, when it acknowledges that women exist, seems to ask, “Ladies, what are you getting so upset about?” Hey, he says, the government could provide birth control coverage — or hand out contraception directly. The thousands of women who work for Hobby Lobby could seek employment elsewhere, at a corporation headed by people who understand the medical science behind contraception. No one’s taking their fundamental choice away.
This idea — that women can always find another way to get the coverage or care they need — underpins just about every recent restriction on women's health. What’s another 24-hour mandatory abortion waiting period? To a woman who lives 25 miles from the nearest provider, it’s everything. What’s one more tweak to a law about the width of clinic doors? To a clinic that can’t afford to remodel, it’s everything. What’s a minor policy change that means you have to pay full price for that IUD? To a woman who makes $14 an hour, it’s everything.
A choice isn’t really a choice when you can’t find another job, or when it’s the end of the month and the checking account is empty and the morning-after pill costs $50 without insurance, or when the only approved birth control methods won’t work for you. For decades, activists have invoked a woman’s “right to choose” — choose when it’s the right time for her to have children and when it’s not, and to choose which contraceptive method to use in the meantime. In theory, women are still allowed to make these choices in America. In practice, though, to choose you must have options. Health insurance is one of the things that guarantees options and access. Freedom, as the conservatives say, isn’t free. For a choice to be a true choice and not a default, sometimes we have to subsidize it.
Yesterday, as Twitter erupted in the wake of the decision, conservative blogger Erick Erickson gleefully tweeted, "My religion trumps your ‘right’ to employer subsidized consequence free sex.” Though we couldn’t disagree more on the merits, no other tweet captured my feelings on the Hobby Lobby case so clearly. My rights feel very much scare-quoted — not rights at all, but a veneer of choice. The medical care that is critical to my ability to live and work — and, yeah, have consequence-free sex — was dismissed by the Supreme Court as relatively unimportant.
Erickson’s use of the phrase “consequence free” was familiar. I heard variations on this theme many times over the course of my Catholic upbringing. "I'm pro-choice,” my dad would say. “You have a choice whether or not to have sex. Then you have to deal with the consequences." Of course, unless you have no desire for sex or a strong desire for dozens of children, that’s not a choice at all. Which is why socially conservative columnists like Ross Douthat beat the drum about the need to attach consequences to sex again. You made your bed, now lie in it. Ideally, with your husband and children.
This is at the heart of the Hobby Lobby case: Needing a blood transfusion or a vaccine, as the Court sees it, isn't the consequence of a "choice" you make. It is necessary medical care for you to live your life. You don’t choose to need protection from an infectious disease. You don’t choose to need a liter of new blood. You do, however, choose to have sex — if you’re a woman. And so contraception, the majority of justices say, is different. The implication is that women can freely choose to either abstain from sex or have lots of children, which most of us understand is not a choice at all.
The Supreme Court’s decision — and most reproductive-health restrictions passed by lawmakers across America over the past several decades — expresses the view that women make their choice when they choose sex, and it's up to them to figure it out after that. That there is no social or moral or governmental obligation to make it easier for them to make choices that follow from a perfectly human impulse to want sex but not babies. For women, sex is an option, an inessential luxury like LASIK eye surgery. Hey, the Court is saying, we’re not telling you not to have sex! We’re just telling you that if you do, you’ll find it difficult to maintain a career, gain financial footing, or live a healthy life. You’ll just have to work a little harder, it says. Find the loopholes. Drive a little farther. Pay a little more. You’ll find a way — you women are resourceful.
Most Viewed Stories
Trump Campaign Manager Accidentally Refers to His ‘Abuse’ of Women on Live TV
It’s Finally Possible to Understand What Happened to Amanda Knox
The Very Uncomfortable Experience of Rewatching Election in 2016
Rob Kardashian and Blac Chyna Reportedly Broke Up
Ask a Boss: My Co-worker Wants Everyone to Call Her Boyfriend Her ‘Master’!
Ask Polly: Should I Try to Help My Alcoholic Friend?
Finally Someone Called Donald Trump a Giant Baby and It Was Michelle Obama
Looks Like Kate Middleton Is Enjoying the View in Canada
22 Intimate Lost Photos of Marilyn Monroe
Outrageous Party Photos From Andy Warhol’s Factory Days
From Our Partners
The Zoe Report
Who What Wear
powered by PubExchange
The Cut’s Latest Love and War FeaturesThe Novelist Disguised As a Housewife
Shirley Jackson wrote 17 books while raising four children — and she couldn't have had a successful career without them.Ava DuVernay on Hollywood Racism, Modern-Day Slavery, and Why She’s Still an Optimist
The director, whose new documentary The 13th chronicles America’s history of racial subjugation, talks to Rebecca Traister about Bill Clinton, Newt Gingrich, and the modern criminal-justice system.What No One Tells Couples Trying to Conceive
It helps to be rich.The Hidden Black Women Who Helped Win the Space Race
A segregated unit of mathematicians born of desperation during World War II became the secret to NASA’s success.Slut-Shaming Squids Are Everywhere
The “Bermuda Square” comic strip is back.Santigold’s New Video Is the Result of a Spontaneous Run-in With Kara Walker
The collaboration that dreams are made of.Emma Stone and Andrew Garfield Spotted Together Again, Love Might Be Real
They could be back together ahh!Teen, Forced to Go on Vacation With Her Family, Calls 911
The logical decision.Report: Hearst Fired Seventeen EIC Michelle Tan During Her Maternity Leave
Tan had been at the magazine for about two years.Good Morning America Host Amy Robach Apologizes for Saying ‘Colored People’ on Air
She quickly apologized.
That’s one way to do it.Don’t Mess This Up, Mischa Barton
Marissa Cooper is poised for a comeback ... maybe.California Votes to Remove Time Limit on Prosecuting Rape Cases
In light of the Bill Cosby case.Beyoncé’s Behind-the-Scenes Lemonade Photos Belong in a Museum
She had the "Boycott Beyoncé" sign already in formation on set.The Rise of the Male Celebrity Full-Frontal
An ex-publicist explains.Gabby Douglas Will Be a Miss America Judge
The gold-medal gymnast will help choose the 2017 pageant winner.Camille Becerra’s Photo Diary of Rockaway Beach
An ideal trip to add and cross off your summer bucket list.Sorry Nerds, Ian McKellen Won’t Officiate Your Expensive Lord of the Rings–Themed Wedding
Not even for $1.5 million.Miles Teller Is Still Upset About Being Called a Dick
He wants to set the record straight.Why Parents Shouldn’t Talk About Weight With Their Teens
New guidelines seek to banish weight talk.