women justice's rock the hobby lobby case

http://www.newyorker.com/online/blogs/newsdesk/2014/03/women-supreme-court-justices-hobby-lobby-birth-control.html



There were two lessons from Tuesday’s argument in the Hobby Lobby case in the Supreme Court. First, it’s very important that there are now three women Justices. Second, it’s even more important that it takes five votes to win.

The issue in the case is straightforward. The Affordable Care Act requires employers who provide health insurance to their employees to include coverage for contraception. The owners of Hobby Lobby, a large (thirteen-thousand-employee), privately held chain of stores, regard certain kinds of birth control (like the I.U.D. and morning-after pills) as forms of abortion, which is against their religious principles. Does the employees’ right to choose and obtain birth control trump the employer’s right to religious freedom?

There was little doubt where the Court’s three female Justices stood. After Paul Clement, the lawyer for Hobby Lobby, began his argument, twenty-eight of the first thirty-two questions to him came from Ruth Bader Ginsburg (four questions), Sonia Sotomayor (eleven), and Elena Kagan (thirteen). The queries varied, of course, but they were all variations on a theme. The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power. Sotomayor asked, “Is your claim limited to sensitive materials like contraceptives, or does it include items like blood transfusion, vaccines? For some religions, products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?” Clement hedged in response. When Clement asserted that Hobby Lobby’s owners, because of their Christian values, did care about making sure that their employees had health insurance, Kagan shot back:

I’m sure they want to be good employers. But again, that’s a different thing than saying that their religious beliefs mandate them to provide health insurance, because here Congress has said that the health insurance that they’re providing is not adequate, it’s not the full package.
Indeed, Kagan recognized that Clement’s argument took on much of the Affordable Care Act, not just the contraception provision. “Isn’t that just a way of saying that you think that this isn’t a good statute, because it asks one person to subsidize another person?” she asked. “But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, ‘No, I don’t want to give that,’ that woman is quite directly, quite tangibly harmed.”