CoverStory

The missing women in the Supreme Court

As the ranks of women jurists grow, women have largely disappeared from the consideration of the Supreme Court’s conservative majority

By Nicole Hemmer

“Where are the women?” The question came from Representative Carolyn Maloney, following a 2012 hearing about a new regulation requiring companies to provide health insurance coverage for contraception. Five people testified before the House Oversight Committee about the impact of the requirement. All five were men.

In 2014, the issue of contraceptive coverage reached the Supreme Court in Burwell v. Hobby Lobby. Perusing the opinion handed down by the Court’s conservative majority, the question arises again: “Where are the women?” They are missing not only from the Court’s decision in Hobby Lobby, but from much of the jurisprudence coming out of the Court’s latest term.

When Elena Kagan became an associate justice in 2010, she made history. Never before had three women simultaneously served on the nation’s highest court. Yet as the ranks of women jurists grow, women have largely disappeared from the consideration of the Court’s conservative majority — an erasure with serious consequences for women’s social and economic lives.

Burwell v. Hobby Lobby sat at the intersection of an array of hot-button political issues. As a challenge to the Women’s Health Amendment of the Affordable Care Act, it was part of the right’s efforts to weaken Obamacare. As an assertion of religious freedom on behalf of for-profit corporations, it was part of the Court’s expansion of corporate personhood. And as an attack on contraceptives as a moral rather than medical subject, it was part of the ongoing battle over women’s reproductive rights and sexual autonomy. It was, in essence, the 2012 election replayed within the judicial branch.

Read the opinion by the Court’s conservative majority, however, and you would be surprised to learn the case had anything to do with women. Writing for the majority, Justice Samuel Alito lingered not over women’s rights but corporations’ souls. The case turned on whether, in requiring companies to provide contraceptive coverage for their employees, Obamacare had violated the religious freedom of those corporations.

Pause there: “the religious freedom of those corporations.”

In an opinion steeped in empathy for corporate persons, Alito laid out in careful detail the lives of the family who founded Hobby Lobby, a chain of arts-and-craft stores, and the family behind Conestoga Wood, a second company suing to stop the contraception mandate. Framing the question as one of families rather than corporations, Alito concluded that asking the corporations to provide contraceptive coverage violated the families’ “sincerely held religious beliefs,” placing an unnecessary and substantial burden on their free exercise of religion, and was thus unconstitutional. 

Corporations are people, my friend: people with freedom of speech thanks to 2010’s Citizens United ruling (which curtailed campaign finance regulation) and now people with freedom of religion, thanks to Hobby Lobby.

Corporations, then, are people with constitutional rights. But so too are actual people. So what happens when their rights come into conflict? This is where one would have expected Alito to turn his attention to the stakes of striking down the law for women. How would a ruling carving out a contraception exception in health care affect them and the rights guaranteed in cases stretching back to 1962’s Griswold v. Connecticut, which guaranteed the right to contraceptive access?

Here Alito’s well of empathy ran dry. In a decision that mentioned women only 13 times in 49 pages, Alito offered the legal equivalent of a shrug. The government, he wrote, can come up with some other way of providing women with contraception coverage. In other words: eh, they’ll figure something out.

Alito created an obstacle to women’s health far more significant than finding a plan B for contraceptive coverage, though. In exempting contraception from standard health care, the Court’s conservative majority ensured it would continue to be treated, in both law and practice, as something separate from “real” health care. Alito made this explicit in his opinion, when he offered assurances that the religious freedom of corporations in this case extended only to contraceptives, not real health care issues like vaccines and blood transfusions, which may involve “different [read: not woman-specific] interests.”

This was precisely the problem the Women’s Health Amendment was meant to remedy, because ghettoising women’s reproductive health has measurable economic and health effects for those women. 

Out-of-pocket health care costs, for instance, are 68 per cent higher for women than for men. But again: the conservative majority doesn’t have much to say about women and their health. It is not a question they care to dwell upon.

The absence of such a discussion alarmed Justice Ruth Bader Ginsburg, who wrote the liberal minority’s dissent. She immediately turned her attention to the women affected by the decision: “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.” This statement, borrowed from a 1992 decision on abortion rights, framed Ginsburg’s dissent, which, in stark contrast to Alito’s opinion, mentioned women 41 times in just 35 pages.

With women folded into the discussion, the Hobby Lobby case looked quite different. The question of religious liberty was not absent but contextualised: accommodations for religious beliefs, Ginsburg noted, are limited by their effects on other people. Moreover, Ginsburg included a discussion of the public health interests advanced by contraception coverage. As a 2011 study from the Brookings Institution showed, unintended pregnancies have more adverse health risks, including delayed prenatal care, which not only costs taxpayers $12 billion a year but hinders women’s educational achievement and labour-force participation. And contraceptives provide a range of health benefits separate from pregnancy, including cancer prevention and hormone regulation.

Yet Ginsburg and the liberal justices were the minority, not the majority. Her defense of women’s interests was a rearguard action, highlighting but not undoing the majority’s erasure of women from its ruling.

There is one category of women the Court supported this term: imaginary ones. 

At issue were so-called TRAP laws, the Targeted Regulation of Abortion Providers. These state laws impose upon abortion clinics a series of onerous regulations meant to make abortion unattainable. Since the sweeping Republican victories of 2010, legislators have passed more than 200 of these TRAP laws.

This term, in a 5–4 decision, the Court’s conservative majority refused to halt a TRAP law in Texas that requires abortion providers to have admitting privileges at local hospitals. Because many hospitals refuse to extend these privileges to abortion providers, this law immediately shut down one third of the abortion clinics in Texas. (Another Texas TRAP law that has yet to reach the Supreme Court briefly went into effect in October, shutting down all but eight clinics in the nation’s second-largest state.)

Framed as laws protecting women’s health — Alabama’s TRAP law is called the “Women’s Health and Safety Act” — such requirements do nothing of the sort. The women they purport to protect do not exist, because abortion is already a safe, routine procedure. Admitting privileges, for instance, have no effect on the care women receive when they enter the hospital, which is why both the American Medical Association and the American College of Obstetricians and Gynecologists oppose admitting-privilege requirements.

Under the guise of concern for women’s health, Texas now requires abortion clinics to meet the strict standards of “ambulatory surgery centers,” turning them into mini-hospitals, even if they only provide medication abortions. This too is a wholly unnecessary regulatory burden. Only 0.1 per cent of women who have abortions need emergency care. Even routine procedures like colonoscopies and laparoscopies are more dangerous. This statistic prompted Circuit Court Judge Richard Posner to ask why abortion clinics were being regulated instead of these other facilities. “Why did they start with abortion clinics?” he asked the assistant attorney general defending a Wisconsin TRAP law. “Because it begins with the letter ‘A’?”

The irony — indeed, the cruelty — behind these “women’s health and safety” regulations is this: not only do they fail to safeguard women’s health, they actively damage it. Women cut off from access to legal abortion services in places like Texas’s Rio Grande Valley will turn to risky alternatives: travelling to Mexico, seeking illegal procedures in the United States, or taking off-label medications, like ulcer drugs, to induce abortion. Some states also now require doctors to follow the Food and Drug Administration’s 14-year-old regimen for medication abortions, rather than the best practices developed over time. This not only limits women’s access to medication, rather than surgical, abortions, but also makes medication abortions more dangerous.

Yet it is not clear that, should the Supreme Court step in, it will provide women any relief. Indeed, given the willingness of the Court’s conservative majority to ignore women in their rulings, it is troubling to contemplate how the Supreme Court would decide the constitutionality of TRAP laws.

The last time the Court took up the question of abortion regulation was 1992, in the landmark case Planned Parenthood v. Casey. The Court at the time had an ideological divide, but one that favoured more liberal justices. Casey, a 5–4 decision written by the Court’s liberal majority, showed not only the deep ideological fault lines in the Court but the conservative bloc’s erasure of women from its deliberation. Both the liberal and conservative justices understood abortion regulation as a balancing act, with the interests of women on one side and the interests of the states on the other.

Read the liberal majority’s opinion, and both the state and women are present throughout. While keeping the interest of the state in mind, the justices showed considerable empathy toward women and their political and spiritual autonomy. “The destiny of the woman,” the justices insisted, “must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.”

While the justices allowed for greater regulation of abortion than Roe v. Wade, they made clear that “all abortion regulations interfere to some degree with a woman’s ability to decide whether to terminate her pregnancy.” Even when the justices limited women’s actions, they kept women clearly in focus.

Turn to the conservative dissent, however, and women melt away. Announcing that Roe v. Wade, the 1973 decision that made abortion legal in the United States, was “wrongly decided” and “should be overruled,” Chief Justice William Rehnquist denied that abortion was a fundamental right. When women appeared in his dissent, their interests were immediately subsumed to others.

Take the issue of spousal notification, which the liberal majority ruled was an “undue burden” on women seeking an abortion. The requirement that a woman inform her husband, the majority argued, impinged too heavily on her autonomy. The vast majority of married women — 95 per cent — already informed their husbands of their decisions to abort. The remaining 5 per cent included women who had good reason not to inform their husbands. “The women most affected by this law — those who most reasonably fear the consequences of notifying their husbands that they are pregnant — are in the gravest danger.”

But Rehnquist showed little concern for such consequences. He admitted a spousal notification would endanger “battered women who fear psychological abuse or injury to their children” and women whose pregnancy resulted from “unreported spousal sexual assault.” But spousal notification upheld “a husband’s interests in procreation” and the state’s interest in marital integrity through “truthful communication” and “collaborative decisionmaking.” These rights, Rehnquist held, trumped those of the women who would be endangered.

The Casey dissent gives a glimpse of how a conservative majority might rule when it comes to TRAP laws. And it is worrying precedent. When women and their interests are sidelined or erased from the judicial process, their rights are steadily eroded as well. Given the willingness of the conservative majority to subsume women’s rights to corporate interests in Hobby Lobby, the odds of a ruling that stops TRAP laws seem long indeed.

The most recent session of the Supreme Court had dramatic consequences for women’s health and reproduction. Yet a number of observers described it as a “quiet” or “not-too-pivotal” term. Which is precisely how the Court’s conservative incrementalism works. Slowly, quietly, it chips away at women’s reproductive autonomy, erasing them from consideration, hoping no one asks where the women are.