[dropcap]I[/dropcap]t was no coincidence that the three justices most actively engaged in the Hobby Lobby contraceptive-mandate argument were the three women justices.
It’s not just that the women justices are all liberals, although they are.
It’s also that they’re all women, who, unsurprisingly, may see the issue just a little differently. For example, they probably know that the percentage of sexually-active women who have used contraception in America is — depending on which survey you trust – somewhere between most of them and approximately all of them.
Which is just one more thing that makes this case so fascinating.
The case, in brief, is this: The new health care law mandates that those companies providing health insurance must include contraception coverage. Hobby Lobby applied for a religious exemption from this rule, even though it’s a for-profit, privately held chain of, well, Hobby Lobby stores. But since Hobby Lobby’s owners believe certain kinds of birth control cause abortions, they also believe being required to include them violates their religious beliefs. The question is: Can corporations have religious beliefs, particularly if they trample on the rights of their employees?
[pullquote]The women on the court know that the percentage of sexually active women who have used contraception in America is somewhere between most of them and approximately all of them.[/pullquote]
The answer will come in a few months. Many of the smarter court observers are predicting a 5-4 win for Hobby Lobby.
If that’s the case, winners would include Hobby Lobby, Conestoga Wood and other companies who could presumably raise religious objections to, say, the minimum wage or child labor laws; all Obamacare opponents who reflexively celebrate any ruling against Barack Obama; and, in a surprise appearance, those Democrats fighting in the so-called Republican war against women, which will be a central battleground in the November election season.
Yes, Democrats. I know it seems counterintuitive, but it’s actually an easy call. Women already vote in large numbers for Democrats. If contraception coverage becomes an issue, that number should only grow. It’s certainly the way that Democrats will bet.
You may remember all the way back to 2012 and to Sandra Fluke and to Rush Limbaugh and how this all became part of the Republican presidential primary race, during which Democrats tried to make an issue of contraception. Republicans – even Rick Santorum – cried foul, and maybe the danger wasn’t as great as the Democrats wanted it to seem.
The Fluke story was about a Catholic university and birth control. This is a little different. It is one thing for religious institutions to object to the mandate and quite another for those who are simply religiously inclined. In the Supreme Court, Hobby Lobby’s lawyers argued that the case is about religious freedom and not about birth control. But if women lose free birth control coverage, that case would be harder to make, particularly out in the real world where the justices may spend too little time.
Certainly Cory Gardner understands that. The Udall-Gardner race will have its surprises, but the central themes are already in place. Gardner will try to make Obamacare into Udallcare, which is the Udall vulnerability that pulled Gardner into the race. And Udall will adopt the Michael Bennet strategy of forcing the opponent to play the social issues game — and, in this case, Gardner has a long list of ultra-conservative House votes that don’t exactly fit the Colorado libertarian model.
That’s why Gardner had to disown personhood. It had nothing to do with abortion. Gardner is, was and will be resolutely anti-abortion, even if he’s hedging on how his resolution plays out. It’s hard to get a straight answer from him on would-be-abortion-law exceptions, but the voting record is there on bills he co-sponsored that didn’t exempt rape or incest.
But Gardner’s given reason for abandoning his belief in personhood — or at least in personhood amendments — was not that he didn’t believe life begins at conception, but that he somehow didn’t realize that personhood laws would outlaw certain kinds of contraception. You don’t have to believe that he didn’t understand it — after all, he could hardly have missed it — but it’s clear that Gardner understands the political situation now.
I don’t know what Gardner will say about the Hobby Lobby case. Republicans are standing with Hobby Lobby and Conestoga Wood. The company owners were just given an award by the Heritage Foundation. But in his brief stint as senatorial candidate, Gardner is making it a habit to avoid stands on most controversial issues. In a long interview with Politico the other day, Gardner declined to take a stand on immigration, on the Dream Act, on climate change, on the Grover Norquist tax pledge, even though he has taken stands on all of these things before.
But, now that we’re in 2014, the one issue Gardner has wanted to be clear on is contraception.
Hobby Lobby and the Supreme Court may complicate that — for Gardner and for every Republican Senate candidate who, say, favored the House’s personhood bill. A ruling for Hobby Lobby would be terrible for women’s rights. It would be bad for the Obamacare law. It could move us many decades backward on the role of religion in the public sphere.
And it would leave Republicans having to defend a ruling that limits birth control coverage not just in the cases of women having, you know, like, um, sex — but also in the cases where women’s health is directly affected.
I can see where it’s a fight Republicans wanted to have in the Supreme Court, but is it really one they want to have at the ballot box?