Potter Stewart wrote an opinion in the 1974 case of Geduldig v. Aiello. Not too many people remember the opinion, because it was mercifully murdered by changes in the law in 1978, when Congress used to enact laws. The question before the court was whether California’s denial of disability benefits for pregnancy constituted invidious sex discrimination. The Supreme Court held it did not, as it would be costly to pay for pregnancy-related disability, and saving money was a rational purpose.
The dissent by Justice Brennan, noted that the Court gave short shrift to the discriminatory aspect of the exclusion of pregnancy disability benefits.
When, as in this case, the State employs a legislative classification that distinguishes between beneficiaries solely by reference to gender-linked disability risks, “[t]he Court is not . . . free to sustain the statute on the ground that it rationally promotes legitimate governmental interests; rather, such suspect classifications can be sustained only when the State bears the burden of demonstrating that the challenged legislation serves overriding or compelling interests that cannot be achieved either by a more carefully tailored legislative classification or by the use of feasible, less drastic means.”
But as much as the dissent saw denial of pregnancy disability benefits as a gender-linked issue, the majority saw no such thing:
There is no evidence in the record that the selection of the risks insured by the program worked to discriminate against any definable group or class in terms of the aggregate risk protection derived by that group or class from the program. There is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not.
This passage referred to footnote 20, which offered one of the most remarkable rationales ever:
The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.
Pregnancy is not gender related, the Court held, because there is a group of nonpregnant persons who include members of both sexes. You have to admit, Potter Stewart was pretty darned spry for an old man.
Let’s now remove the politics from Obamacare, since it would have been Romneycare if he didn’t have binders full of women. I know it’s painful to acknowledge, but let it go. The program covers contraceptive care, and some religious people think that’s awful. Some religious people think blood transfusions aren’t right either. Some religious people think plenty of stuff that other religious people think is nuts. Some non-religious people think so too.
In Geduldig, the Supreme Court used higher math to change the equation from one of sex discrimination, requiring strict scrutiny, to one of pregnant persons v. nonpregnant persons discrimination, thus allowing rational basis to apply. Same people. Different equation by rhetorical manipulation. Cool move, right?
Requiring a business (regardless of entity used to hold and engage in the business) to provide insurance for its employees can either be deemed an endorsement of the underlying medical procedures or no endorsement at all, based on the sort of rhetorical manipulation enjoyed by Potter Stewart. It can mean everything or nothing based on where one focuses and how one divides up the definitions.
Sam Alito’s Hobby Lobby opinion says that closely-held corporations are made up of people, and those people are entitled to religious freedom without the government unnecessarily imposing its will in a way that conflicts with that freedom. There is a law that protects a person’s exercise of religion, and Alito interprets that law as protecting the people behind the business, and their right to maintain a business consistent with their religious beliefs.
Alito’s argument makes perfect sense, if you accept the premise that, by characterizing the argument as one between the religious beliefs of the people behind a business and the government mandate, the requirement that medical care that includes contraceptive benefits is an affront to a person’s religious belief.
As Justice Ginsburg noted in dissent in Hobby Lobby, no one is forced to use contraceptives just because it’s part of the bundles of care required to be provided. If they do, it’s their “autonomous choice.” Actually, she says it’s a woman’s autonomous choice. That’s because this strips the choice from women. Not all women, though, because like Stewart found in Geduldig, there are contraceptive users v. noncontraceptive users, and the latter includes both sexes. Why should people behind Hobby Lobby be forced to compromise their religious beliefs in order to accommodate the god-hating contraceptive users?
Much of the opposition to the Hobby Lobby decision focuses on the many women who will be denied access to contraceptive care, and thus the right to make autonomous decisions about their own bodies and medical care. But the opinion is no more about the rights of women than it is about the religious freedom of the people behind the closely-held Hobby Lobby.
It’s only about a government program to provide insurance coverage to people, which they can use or not as they see fit or require. The only endorsement, and it’s only an endorsement in the most abstract sense, is that a for-profit company abides by the law that requires it to provide its employees with health insurance. So really, the Geduldig distinction is insured persons v. uninsured persons. Unless you belong to the Church of Latter Day Uninsureds, it’s got nothing to do with religion. It’s just a bundle of medical care.
Everything else about this case is baloney. It always has been, and to the extent that there have been a million words murdered on any subject beyond whether people should be capable of obtaining whatever health care they need, it’s just the rhetorical gymnastics of Geduldig used to play games, to justify an outcome that defies reason. It’s just about health insurance. That’s all it’s ever been about. Nothing more, no matter how one tries to manipulate the issue.