NARAL Pro-Choice America blistered the Supreme Court majority for making a “direct attack on women” and “discriminat[ing]” against birth control, perhaps without noticing that the court assumed that the Health and Human Services Department’s contraception mandate “furthers a legitimate and compelling interest” with regard to the health of women.
“Today’s decision from five male justices is a direct attack on women and our fundamental rights. This ruling goes out of its way to declare that discrimination against women isn’t discrimination,” president Ilyse Hogue says. ”Ninety-nine percent of women use birth control at some point in our lives, and none of those stories made it into the arguments. It’s outrageous that these five male justices chose to single out birth control for special discrimination. ”
Justice Anthony Kennedy, in his concurrence, took a moment to remind Hogue and others that the “five male justices” were not discriminating against birth control.
“It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees,” Kennedy wrote, although the court did not explicitly hold that the regulation furthers a compelling interest.
Kennedy pointed out that the government has already admitted (by coming up with a so-called ‘accomodation’) that it could devise a less restrictive way of furthering that interest than by use of the contraception mandate.
“[The Religious Freedom Restoration Act] is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation,” Kennedy wrote.
President Obama’s attempt to tamp down on the political backlash seems to have backfired. Obama’s decision to exempt some religious believers (and the corporations they belong to, such as churches and non-profits) from the mandate, but not others, didn’t pass muster.