THE BLOG

Barefoot and Pregnant: The Supreme Court and the War on Women

07/07/2014 10:51 am ET | Updated Sep 06, 2014
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There really is a war on women, and recently the U.S. Supreme Court has made the conduct of that war even easier. Due to majority decisions by this court, women are now more vulnerable in their physical persons and in their ability to plan their economic lives.

This is a war because war involves both physical injury as well as economic deprivation.

There is a risk of real physical injury to women when the relationship between a woman and her health care counselor" is "interrupted" (p 23), as Justice Ruth Bader Ginsburg notes in her furious and extensive dissent from the majority opinion in the Hobby Lobby case.

Let me be personal. I ran a serious risk in getting pregnant again after I had several caesarian sections to deliver our children. After three such surgeries, my uterus was at greater risk to rupture from another pregnancy. I heard from my doctor that there was a risk of injury, even death, for myself as well as for any fetus if I got pregnant again.

How dare the Supreme Court potentially insert my employer into that issue or many other health care issues women face in terms of reproduction? The Ginsburg dissent takes me and many, many other women into account; the majority opinion by and large ignores women, and thus shows contempt for the health and well-being of women.

There is also the matter of cost burdens for women in these decisions, as Justice Sonia Sotomayor contends in her strong dissent from the court's action to grant an emergency request from Wheaton College, an evangelical college in Illinois, to not comply with the accommodation worked out by the Obama administration for religiously identified not-for-profits. Justice Sotomayor, with the concurrence of Justices Kagan and Ginsburg, wrote "The Court's actions in this case create unnecessary costs and layers of bureaucracy." These are costs so many women in this economy cannot afford.

Women and especially poor women are substantially burdened as Justice Ginsburg points out in her dissent in the Hobby Lobby case. Ginsburg recalled an earlier decision of the Court, Planned Parenthood v. Casey, in which women's healthcare was at stake, in that case abortion. "The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."

Taking away control from women is the point, not religious freedom. The goal of this conservative war on women, being facilitated now by the U.S. Supreme Court, is, in fact, doing away with women's control of their reproductive and thus their economic lives.

These recent Supreme Court decisions have been hailed by conservatives as a victory for religious freedom. That is not the case, as Justice Ginsburg shows in her dissent in the Hobby Lobby case. This is not religious freedom, it is religious establishment. "Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude." This is especially evident since it is Christianity that is being cited as the source of the religious objection. What is increasingly evident in the U.S. is that particular forms of Christianity are being recruited by political and religious conservatives to push a political agenda.

But even this cogent argument by Justice Ginsburg does not quite make the link to why these decisions are so specifically a front in the war on women, and how religion is used for this purpose.

Christianity as been employed over and over again to justify control of women's bodies and their lives, and even to justify doing violence against them to accomplish this end, as I am arguing in my forthcoming book, Women's Bodies as Battlefields: Christian Theology and the Global War on Women (Palgrave Macmillan, 2015).

Indeed, the war on women and war itself share some of the same roots in contempt for the body. War is, as Elaine Scarry points out in The Body in Pain: The Making and Unmaking of the World, about who can out-injure the bodies of the other side. The side that out-injures the other in war gets control over people, land, industry and products. Injuring the body is the means of war, but the end game is economic gain.

The war on women is also related to both war and economics because the true end game in that war is control of women's reproductive capacity. When women are kept "pregnant and barefoot," i.e. when they are put at risk of getting pregnant when they may not wish to be, or when it can even threaten their lives, this can injure them in both a physical and an economic sense. These combine to render them vulnerable to control by elites. Women's bodies are becoming more and more a physical and economic battlefield in the U. S.

The battlelines have been clearly drawn even within the Court itself. Furious dissents by Justice Ruth Bader Ginsburg in the Hobby Lobby case, and by Justice Sonia Sotomayor in the Wheaton College case, with concurrences by the other female justices, demonstrate this. I do not know this for certain, but as I read these dissents, particularly the one by Justice Sotomayor, there is a tone of betrayal not only of the country but also of them as colleagues and peers. "Those who are bound by our decisions usually believe they can take us at our word," wrote Sotomayor in the Wheaton College dissent. "Not so today."

Women, including these wonderful justices, as well as men committed to the full equality of women and men, need to wake up and see that this conservative ideology for what it is, a denial of women's full humanity in a very broad sense. These recent decisions by the majority of the Roberts Court are an attack on women.

In terms of religion, the decisions are not about religious freedom in a Christian sense. In fact, they are a profound distortion of some of its most central tenets. The person and work of Jesus of Nazareth are, for example, about the affirmation of the goodness of the body (the Incarnation), and about the full, God-given equality of women as shown in so many instances in Jesus's ministry.

Conservative ideology and religion, however, have conspired to make women in the United States more physically and economically vulnerable.

I have a strong belief that women and men who care about gender justice will not forget this at the polls.