Commentary Contraception

‘Hobby Lobby’ and the Case for More Women on the Bench

Sandhya Bathija

From the start of this week’s oral arguments, Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg drilled former Solicitor General Paul Clement, who was arguing on behalf of the for-profit craft store Hobby Lobby. That’s because they know that if Hobby Lobby wins, women lose.

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

No one needs to guess where the women justices of the U.S. Supreme Court stand on Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corporation v. Sebelius.

From the start of this week’s oral arguments, Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg drilled former Solicitor General Paul Clement, who was arguing on behalf of the for-profit craft store Hobby Lobby. Question after question, these women challenged Clement on the dangerous results of his client’s claim.

That’s because they know that if Hobby Lobby wins, women lose.

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“Congress has given a statutory entitlement, and that entitlement is to women and includes contraceptive coverage,” Justice Kagan said. “And when the employer says, no, I don’t want to give that, that woman is quite directly, quite tangibly harmed.”

Short of Justice Anthony Kennedy, who asked a question about the potential harm a decision for Hobby Lobby could have on female employees, none of the other male justices indicated that they recognized this case was about women. While this case is certainly about religious liberty and the law of corporations, it also can be classified as a sex discrimination case.

The for-profit corporations Hobby Lobby and Conestoga Wood have challenged the Affordable Care Act’s requirement that companies with more than 50 employees provide health coverage that includes birth control without a copay. More than ten years ago, the Equal Employment Opportunity Commission issued an opinion making clear that refusing to provide insurance coverage for contraception is sex discrimination. Hobby Lobby and Conestoga Wood are asking the Supreme Court for special permission to discriminate against women.

Studies have shown that having a woman on the bench in gender discrimination cases makes a difference. A study published in the Yale Law Journal found that male judges on panels with female judges decided for plaintiffs “more than twice as often as those on all-male panels.”

An additional study found that federal appellate judges are less likely to rule against plaintiffs bringing sex discrimination cases if a female judge is on the panel “because female judges possess information that their male colleagues perceive ‘as more credible and persuasive’ than their own knowledge about sex discrimination.”

President Obama has made strides diversifying the bench, including adding Kagan and Sotomayor to the Supreme Court. More than 42 percent of Obama’s confirmed nominees have been women, compared to 22 percent under George W. Bush and 29 percent under Bill Clinton. But despite these recent gains, women make up only 32 percent of the federal bench.

We can directly see how the lack of female judges affects the law. Hobby Lobby made its way to the U.S. Supreme Court via the Tenth U.S. Circuit Court of Appeals. At the time of the decision, there was only one woman on the appellate court, Mary Beck Briscoe. In an en banc decision, the Tenth Circuit ruled in favor of the craft store. Briscoe dissented.

Since then, the U.S. Senate has confirmed another woman to the Tenth Circuit, Carolyn Baldwin McHugh, and an additional woman nominee is now pending on the Senate floor, Nancy Moritz.

Had these women been on the Tenth Circuit at the time the case was before the court, perhaps there would have been a different outcome. We’ll never know.

What we do know is that 99 percent of women, at some point in their life, take birth control. Increasing a woman’s ability to access health care and plan her pregnancies moves women closer to equal economic and social opportunity. We also know that prior to the Affordable Care Act many women were not able to afford birth control, but now millions of women are benefiting from no-copay birth control.

We can only hope that before Friday’s vote, the three women on the Supreme Court can bring around the six male justices to see the true damage a decision for Hobby Lobby could have on women.

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