This is a very bad time for American women in the Supreme Court.
Three big cases were decided right at the end of its term that will profoundly affect women's lives, subject them to conditions that are never applied to men, and damage their ability to control their own lives and health.
In McCullen v. Coakley, the Court in a "faux-nanimous" decision in which the four moderate-liberals clearly played defense, found that a 35-foot buffer zone around the entrance to abortion clinics in Massachusetts was a violation of the First Amendment. The Commonwealth had established the zones in reaction to the brutal murder of two people at a Boston clinic in 1994 and the endless harassment of women and their families attempting to enter reproductive health clinics.
But Chief Justice John Roberts, writing for the Court, swept aside reality, superimposed his own view of what happens outside clinics, and somehow found that so-called "sidewalk counselors" need to be protected more than the people who work at or make use of the clinics.
But for all his supposed concern for free speech rights, there's a catch: Apparently there are bad buffer zones and good buffer zones. Bad buffer zones are those at women's health centers, but good buffer zones can be implemented around polling places, for instance (they can even extend 100 feet, or 65 feet farther than the Massachusetts clinic buffer).
The court has allowed authorities to significantly limit protests in other contexts, such as at political party conventions where fenced-in "free speech zones" are erected vast distances from those to whom the speech is ostensibly directed. For some reason, the Chief Justice thinks that in the context of street protests the type of speech most deserving of First Amendment protection is the kind where women are forced to hear people harassing them about their sexual and health choices.
While he pictures in his mind sweet church ladies engaging in "personal, caring, consensual conversations," anyone who has ever been near an abortion clinic knows the reality is vastly different. He also talks about public sidewalks' "historic role as sites for discussion and debate," as if protestors screaming vile things at anxious women going to the doctor for a difficult procedure are somehow channeling Thomas Paine handing out copies of Common Sense in front of Faneuil Hall.
So what's so special about street-level abortion "counseling" that puts it in a different category than almost everything else, and why does the opinion express no concern whatever for the needs, desires, or feelings of the women forced to listen to the people demanding their attention?
The Chief Justice gives away the game when he writes that the anti-abortion activists bringing the case "are not protestors," and expresses sympathy with their complaint that they haven't been as successful in persuading women to change their minds as they would be if the buffer zone didn't prevent them from sidling up to within an arm's length and whispering their gentle words of persuasion. Ah, you see, anti-abortion activists aren't actual protestors, like you might see outside a political event or on the public sidewalk in front of, let's say, a bank. Those kinds of people can be forced into far-distant "buffer zones" that have chain-link fence around them. But when it comes to abortion and women trying to enter a medical clinic to exercise their constitutional rights, well, that's another story.
We wonder whether a future opinion by the Chief Justice will lament the fact that government-enforced speech restrictions left an Occupy Wall Street protestor unable to talk a stock broker into quitting his job and going to work in a homeless shelter. Perhaps we can all look forward to the day when he applies his new-found First Amendment assertiveness to something other than corporations and to people he sympathizes with.
Behold: Corporations with religious beliefs
Women's sexual choices and health came under attack again in Burwell v. Hobby Lobby Stores, in which a conservative 5-4 majority conjured up an entirely new entity never before seen in the entire history of our nation -- a corporation with religious beliefs.
The Court ruled that for-profit closely-held corporations have religious rights under the Religious Freedom Restoration Act and can therefore opt out of the requirement that they provide for their employees insurance that covers the contraceptive services mandated under the Affordable Care Act. Let's put aside the obvious implications of this dumbfounding ruling on women's health, the number of laws corporations might opt out of via claims of religious belief, and the concern that it's only a tiny step to the application of this ruling to every corporation. Instead, let's just look at the mangled, disingenuous logic of Justice Samuel Alito's opinion.
The Court majority is adamant about the great harm done to corporate owners whose religious sensitivities are offended by government policies and the legal rights of their employees, but oddly only those religious beliefs that deal with women's sex lives are of sufficient import to warrant the Court's intervention.
Justice Alito goes out of his way to say that this ruling doesn't implicate corporations with owners whose religions abhor things other than contraception (although he doesn't explicitly rule that out). He tries -- and fails -- to be reassuring by writing that, "This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates ... must necessarily fall if they conflict with an employer's religious beliefs." If we take Justice Alito at his word, presumably religious business owners who are against blood transfusions (Jehovah's Witnesses), vaccinations (Dutch Reformed Church), psychotherapy (Scientology), or in the case of Christian Scientists, any kind of medical care at all, could be out of luck, but he never says why, probably because there isn't any logical reason why. Justice Alito is willing to invent an entirely new concept of corporate personhood, throw out precedent and centuries of legal theory, and magically ensoul craft stores and furniture makers, just to make sure women who have sex and seek to control their bodies via legal medical means are forced to jump through as many hoops as possible.
Harris v. Quinn decision also harms women
But Justice Alito wasn't satisfied with just one anti-woman decision last Monday. He also penned on behalf of his right-wing brethren the decision in Harris v. Quinn, a case that dealt with whether public employee unions in Illinois could collect bargaining fees from state-paid home health care workers who benefit from the contracts the unions negotiate on the workers' behalf. To no one's surprise, the Court, via another notorious 5-4 vote, found that requiring workers to pay union fees violates their First Amendment rights, meaning workers who don't like the union get to benefit from what the union does for them but they don't have to contribute to the mechanism that gains them that benefit. If union fees are voluntary, then it's easy to imagine that the union will have a hard time staying in business. Which, after all, is the whole point of the case.
Most commentators are rightly focused on the effects of this decision (and the future one it certainly tees up) on the ability of public employee unions to organize government workers and those who work within the new economy of low-wage, part-time, or nontraditional jobs, large numbers of whom are women. It is, not coincidentally, a way to weaken unions generally and disempower workers who often vote Democratic, and therefore stand in the way of the conservative agenda. Although at first glance it may not seem like it, this case is the cousin of Citizens United because at its heart it's about political power and who gets to wield it, and was funded, to no one's surprise, by the Koch brothers and the Walton family, among others, via a group calling itself the National Right-to-Work Legal Defense Foundation.
In this case, as in so many others, the people who must bear the brunt of the conservatives' crusade are overwhelmingly women. According to the Department of Labor, 90 percent of direct home care workers are women, and 50 percent are minorities. This case, by diminishing their economic power, is a direct and willful assault on the lives of those women, their families, and, importantly, the homebound people they care for. The willingness of Justice Alito and his four radical allies to damage the lives of struggling low-income women in order to benefit billionaires is tragic.
During Alito's confirmation battle, then-Senator Barack Obama, when explaining his vote against him said, " ... when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights."
The president was right; a fact that now, eight years later, is painfully obvious. In fact, he could as easily have said the same about the four other conservatives on this Court ... and many of us did.
These three decisions, taken together, are an assault on the rights, health, and economic well-being of women in every corner of this country. But they are also a challenge to President Obama, to Congress, to the political system, and to the American people to take the action necessary to undo the damage that has been done to our country in the last several days. People like to say that the Supreme Court has the final say. But that's not always true. There are many legislative and regulatory remedies for bad decisions. The Court's conservatives are serious about what they're doing, and those of us who are appalled by this sorry spectacle should be the same, particularly when the members of the Court are chosen. If they want a fight, we should give it to them.