Meanwhile, the disappointing Hobby Lobby ruling has even has some advocates for women questioning the government’s strategy in the case. In “One Big Thing Everyone Is Missing in Hobby Lobby,” the National Journal notes that Alito’s decision didn’t even acknowledge the situation of women who use contraceptives for health issues unrelated to birth control, though Ginsberg’s dissent did. Advocates for ovarian cancer sufferers argue that “the debate was misframed as a contraceptive debate from the beginning,” Lucia Graves wrote. “We’ve tried to recast that debate to orient the Court to the fact that there’s more going on here than pregnancy and contraception, but ultimately the Court went with the way Hobby Lobby had characterized it,” attorney Michelle Kisloff told Graves.
It’s true that even Sandra Fluke, trashed as a “slut” and “prostitute” for supporting the contraception coverage mandate, was originally testifying about Georgetown University colleagues who used oral contraceptives to treat health issues. Yet had HHS emphasized the plight of those women, it would have encouraged politicians and judges to sort among the legitimate health and privacy rights of all women. Who would define medically necessary contraception? Would it include women whose health would be seriously damaged by pregnancy? Would mental health count? What about the health of children already born who might require their mothers’ full-time care? These questions aren’t the business of employers, the government or the courts, anyway.
Such understandable postmortem second-guessing puts the onus for the Hobby Lobby debacle on women and their advocates, not the court’s right-wing majority or the corporate and religious interests they represent.