How to Wage a "War on Women" By Proxy, Supreme Court Edition

About two thirds into Justice Alito's opinion in Hobby Lobby came a paragraph that really stuck in my craw yesterday.

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer's religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

The phrasing here is pretty neutral, cloaked in legal standards. It just looks like a court reasonably limiting its holding. But what it reveals, in context, is that the court only barely considers contraception a compelling public interest, and that it thinks that immunizations on the whole have a better claim to that title. The tl;dr version of the paragraph is: "Don't worry, women's reproductive health is a relatively niche interest, for the more important stuff we might uphold a healthcare coverage mandate."

But later in the day, Andrew Sullivan referred to this exact passage, as summarized by the headnote, as "reassuring language." He admits he might feel differently if he was a woman. He also focuses on the fact that the court goes on to say it still thinks employment discrimination is illegal. But to my mind, "reassuring" is the last thing this passage in the decision is.

The distance between Sullivan's reading and mine feels instructive of something. Specifically: of the way the Court's critics get set up, every time, to look like the unreasonable ones.

The thing is that the Court would of course never write the tl;dr version of the paragraph. They would never write, explicitly, that they find women's health or work to lack value, seriousness, or importance. Instead it's always by implication that you come to that result. It's not just in the majority decision in Hobby Lobby either. It also showed up in last week's McCullen case, where no one came right out and said they thought women ought to put the First Amendment before their privacy in choosing health care but that was the clear implication.

And then there was yesterday's much-less covered case of Harris v. Quinn, which was about home health care workers, the majority of whom are women of color. The Court denied public labor unions the right to collect fees from those home health care workers on whose behalf it negotiated higher wages. The collection of these fees from people who are not actually members of the union is controversial everywhere. All the same, it was hard to miss that one of the premises of the majority's opinion (which, like Hobby Lobby, was written by Justice Alito), is that it could safely distinguish the work these home health care aides do from the regular work of proper public employees whose union rights are more entrenched in the law. And as Sheila Bapat, an employment attorney, pointed out over at Talking Points Memo, that puts the Court in the position of more or less ratifying that the work these home health care workers do is less important than "ordinary" work.

Yet somehow, pointing out that the common thread in these cases is that women lose out is to be susceptible to claims that you are simply being emotional, that you don't get "the law." It's a pretty neat rhetorical place the conservatives on the Court have backed us into, because whenever you point out that the aggregate force of their opinions is to screw over women in this country as a general population, they can answer with an indulgent smile. "That's not what I wrote," you can imagine them saying, over and over again. They didn't really mean to wage any kind of "war on women." The law, as they see it, simply required it.