Hobby Lobby and Buffer Zones: The Supreme Court’s Attack on Women

The Supreme Court dealt a one-two punch to women’s rights this week, first striking down the buffer zones surrounding reproductive health clinics and then affirming Hobby Lobby’s ‘right’ to deny contraceptive services to female employees — though the chain store can continue to pay for vasectomies. Both rulings displayed a shocking amount of irony, and hypocrisy, proving that the United States is, as ever, unable to take what it gives out.

First, buffer zones. Until Friday, reproductive health clinics in Massachusetts were protected by a 35-foot buffer zone. Anti-abortion protesters were required to stay outside the zone, marked by a yellow line, while patients, staff, and other people with legitimate business were allowed inside the zone. This included clinic escorts, a tragically necessary group of heroic volunteers who show up to help women navigate screaming anti-choice activists and their gory posters of dead babies so they can access services including cervical cancer screening, contraceptives, and abortions. The Supreme Court, however, felt that the zones were unconstitutional, and as soon as the ban was struck down, antis moved in.

One might say that the Supreme Court justices who ruled against buffer zones have clearly never known the experience of having to fight your way through a dense crowd of screaming people to get a routine medical procedure — or to get to work — but in fact, the Supreme Court knows exactly what it’s like. That’s why the High Court maintains a buffer zone of its own, one that covers the court’s entire plaza. Anyone who wants to protest or speak near the High Court is held far more than 35 feet back.

The decision on buffer zones was 9-0 in favour of antis, with the Court insisting that the law violated the First Amendment and restricted freedom of speech. The Court also stated that laws protecting access to clinics, however, remained Constitutional. What the justices didn’t seem to understand, however, is that ‘access’ isn’t as simple as whether a person can theoretically walk to the door of an abortion clinic. Antis can and do physically block the way and get engaged in physical altercations with clients, in addition to verbally intimidating people by shouting and screaming. What they claim is ‘gentle counseling’ or ‘just talking’ is in fact highly aggressive. These present very real and physical barriers to clinic access — so much so that some patients give up on trying to get into clinics at all, even with clinic escorts to help them, because they’re so terrified of antis.

For Colorado and Montana, the two remaining states with buffer zone laws, this ruling has serious implications. Already, advocates are scrambling to come up with legal defenses to laws that protect the right for patients to access medical care. Meanwhile, in other states where such laws have been floated and advocates are trying to defend their patients, this ruling is a harsh blow.

What the Supreme Court defends as ‘free speech’ is akin to the comments sections of most news websites, except it’s encountered in person. If websites can moderate comments without violating the First Amendment, surely private businesses should be able to request that the area in front of them be kept clear in order to conduct daily business? Antis pose a threat not just to patients and staff, but also to public order (a defensible reason to restrict First Amendment rights, per Supreme Court precedent) and safety. This ruling is a huge disappointment and a betrayal of women’s rights.

But the Supreme Court wasn’t done, because on Monday, it issued a 5-0 opinion in favour of conservatively owned Hobby Lobby and Conestoga Wood, two firms which argued that they should be permitted an exception to the Affordable Care Act mandate that companies pay for all forms of FDA-approved contraception as part of their health care plans. While the ruling has been cast as a vote against contraception, it’s actually a bit more complex, and much more frightening.

The contraceptives under discussion were Ella, Plan B, and two types of intrauterine devices, which the companies declared were ‘abortifacients,’ and thus against their religious beliefs. When the court ruled in favour of the firms, it didn’t just strike a blow to reproductive health access. It also affirmed a false belief that these contraceptive products cause abortion. They do not: They prevent implantation, which is not the same thing. Perpetuating the myth that these basic contraceptive products are equivalent to abortion harms women, and reproductive health in general.

The firms are not exempt from requirements to cover other types of contraceptives, although given that the right thinks hormonal birth control is also an abortifacient, it’s possible a case testing the limits may appear soon. The ruling also applies only to what are known as closely-held for-profit corporations. If a business is publicly owned, it may not seek the exemption. This means that conservative firms wishing to maintain their right to refuse health care services to female employees will have to miss out on the benefits of going public, such as raising capital in an IPO.

Both rulings illustrate the Supreme Court’s disdain for women’s rights, and the very real landscape of the United States. This is a country in which women are second-class citizens without the same access to rights and protections as men. With each ruling like this, women’s rights are chipped away a little more, and the US grows closer to becoming a theocratic state in which women become little more than chattel to be shuffled about and kept constantly breeding.

Photo by Mighty June, licensed under a Creative Commons Attribution 2.0 Generic license.