By Mike Andrew
Before departing for their four-month summer vacation, the Supreme Court handed down two decisions that will make life in the United States worse for women, the LGBT community, and workers.
By a narrow 5-4 majority, the high court ruled in Burwell v. Hobby Lobby that some for-profit corporations may claim a religious exemption from the Affordable Care Act and deny contraceptive coverage to women employees.
The same 5-4 majority then ruled in Harris v. Quinn that some categories of public employees can refuse to join a union, even if it is recognized as their bargaining agent, and also refuse to pay the union fees for its work representing them.
In both cases, the court’s majority claimed that their rulings were limited in scope. In other words, they said,
it could have been worse. In both
cases, Justice Alito wrote the majority opinion.
In the Hobby Lobby case, Alito based his decision on the 1993 Religious Freedom Restoration Act, a law originally designed to protect Native Americans from federal government interference in their religious sites and ceremonies. The court majority stopped short of saying that corporations have First Amendment freedom of religion rights, like they awarded First Amendment free speech rights in the Citizens United case.
Nevertheless, in her stinging dissent, Justice Ginsberg called the opinion “a decision of startling breadth,” which would allow many for-profit companies the right to “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs…”
As if to prove Ginsberg right, the Supreme Court immediately ordered lower federal courts to review all claims of religious exemptions from the Affordable Care Act, putting women’s healthcare in jeopardy across the country.
Hobby Lobby Blowback
Far from settling the issue, the court’s Hobby Lobby decision touched off a huge legislative battle to preserve necessary medical care for women.
Only days after the Supreme Court ruling, Washington’s own Senator Patty Murray and Colorado Senator Mark Udall introduced legislation to reverse the decision.
“Your healthcare decisions are not your boss’s business,” Murray said. “Since the Supreme Court decided it will not protect women’s access to healthcare, I will.”
Although Murray and Udall were joined by 35 co-sponsors, Republican Senators filibustered the bill, and it was not brought to the floor for debate.
Undeterred, Murray then joined with New Jersey Senator Corey Booker to introduce the Access to Birth Control Act to ensure that no woman with a valid prescription is denied or intimidated when requesting birth control or emergency contraception at pharmacies.
“It’s disappointing that in 2014 this legislation is even necessary,” Murray said, “but as the tide of politically-driven, extreme efforts to block a woman’s access to reproductive health services continues to rise, we are going to stand with women and help protect this access.”
Hobby Lobby and LGBT Rights
One of the far-reaching consequences of the Hobby Lobby decision was that national LGBT organizations changed their legislative strategy to adapt to the new legal climate.
In response to the ruling, almost every national LGBT organization pulled their support from ENDA (the Employment Non-Discrimination Act), which had once been the centerpiece of their legislative agenda. The problem is that ENDA includes religious exemption language that – after Hobby Lobby – many feared could nullify the protections in the bill.
“While we fully support strong protections for LGBT workers in the workplace, something that for many workers is currently only afforded by a union contract, after the recent Supreme Court decision in the Hobby Lobby case, it is clear that these broad religious exemptions would gut the intent and purpose of ENDA,” Pride At Work executive director Jerame Davis said in a statement.
At the urging of LGBT rights groups, Pres. Obama omitted a religious exemption from his July 21 executive order barring companies that do business with the federal government from discriminating against their LGBT employees.
More challenges for unions
In Harris v. Quinn, Alito said that Illinois home healthcare workers organized by SEIU were not full-fledged state employees, even though they were paid by Medicaid, and therefore they could not be required to join SEIU or pay fees for SEIU’s work negotiating contracts for healthcare workers.
Alito stopped short of applying his ruling to all public-sector workers, but he did say he thought a previous Supreme Court decision upholding union shops in the public sector was wrongly decided.
The plaintiffs in this case were represented by the right-wing National Right to Work Committee, in hopes that the ruling would cripple unions’ ability to fund themselves.
Public sector unions rely on so-called “agency fees” to compensate them for their efforts negotiating contracts for workers who do not wish to become regular union members. If unions do not have the right to collect agency fees, employers could load up the workforce with “freeloader” workers who get the benefits of a union’s work, but refuse to contribute to the expenses.
According to SEIU 775NW spokesperson Jackson Holtz, the Harris v. Quinn ruling “potentially” affects healthcare workers in the Pacific Northwest, but “there is a difference between the Illinois program and the Washington state model.”
“We have a much more robust collective bargaining model,” Holtz explained, that has brought home healthcare workers “40% more than minimum wage, L&I, social security, and healthcare.”
“Healthcare workers will continue to organize and stand up for themselves and their clients – and stand up against people like Alito who want to tear our communities apart,” Holtz vowed.