Why Harris and Hobby Lobby Spell Disaster for Working Women

Sarah Jaffe

The Supreme Court ruled in favor of Hobby Lobby Monday, allowing "closely held" businesses to claim religious rights and avoid federal healthcare regulations that require employers to include birth control in insurance plans.

Retail sales and home health­care work are two of the three fastest-grow­ing jobs in this coun­try. That’s an impor­tant con­sid­er­a­tion when look­ing at the deci­sions the Supreme Court hand­ed down today in Har­ris v. Quinn and Bur­well, Sec­re­tary of Health and Human Ser­vices v. Hob­by Lob­by Stores: If you are not affect­ed by these rul­ings yet, you well could be in the future.

Both 54 deci­sions were writ­ten by Jus­tice Samuel Ali­to, a con­ser­v­a­tive Catholic from New Jer­sey appoint­ed by George W. Bush, and both rest­ed on nar­row­ly tai­lored legal argu­ments that just hap­pen to cut wide enough to impact groups of work­ers who are almost exclu­sive­ly female. Har­ris cre­ates the spe­cial des­ig­na­tion of par­tial pub­lic employ­ees” for pub­licly-fund­ed home health­care aides who work both for the client and for the state — who are 90 per­cent female, most of them poor, immi­grants, and of col­or. Hob­by Lob­by, mean­while, in decid­ing whether an employ­er with reli­gious beliefs can be required to pro­vide health insur­ance that cov­ers con­tra­cep­tion, sin­gles out women by tar­get­ing its argu­ments towards work­ers who use birth con­trol — but not any oth­er form of healthcare.

As Sheila Bap­at, author of Part of the Fam­i­ly? Nan­nies, House­keep­ers, Care­givers and the Bat­tle for Domes­tic Work­ers’ Rights, tweet­ed, These deci­sions speak square­ly to the val­ue of wom­en’s labor.” 

The Har­ris case was brought in 2010 by Pamela Har­ris, an Illi­nois home­care work­er who received Med­ic­aid mon­ey as wages for car­ing for her son, who has a dis­abil­i­ty. An exec­u­tive order issued by Illi­nois Gov­er­nor Pat Quinn the pre­vi­ous year had des­ig­nat­ed per­son­al assis­tants car­ing for dis­abled adults as state employ­ees, allow­ing them to be rep­re­sent­ed by a col­lec­tive-bar­gain­ing agent. Har­ris and the oth­er plain­tiffs were backed in the suit by the well-heeled anti-union group Nation­al Right to Work Legal Defense Foun­da­tion, and argued that she and oth­er work­ers should not have to pay the costs of rep­re­sent­ing her to SEIU Health­care Illi­nois & Indi­ana (SEIU – HCII), the union that rep­re­sents home­care work­ers who are paid by the state for their work. The suit claimed that pay­ing rep­re­sen­ta­tion costs amount­ed to a forced asso­ci­a­tion that is uncon­sti­tu­tion­al under the First Amendment.

But Har­ris’ attor­neys also made an emo­tion­al appeal about state inter­fer­ence in per­son­al, fam­i­ly mat­ters, despite the fact that many home health­care work­ers actu­al­ly do not care for their own fam­i­ly members. 

Home­care and oth­er domes­tic employ­ees have been long exclud­ed from labor pro­tec­tions giv­en to oth­er work­ers, and this line of argu­ment taps into a his­to­ry of fail­ing to see them as real” work­ers. Accord­ing to the rul­ing, unions will still be able to assess rep­re­sen­ta­tion fees to work­ers who are rep­re­sent­ed by their col­lec­tive bar­gain­ing units but choose not to join the union, pro­vid­ed that they work out­side of a pri­vate home. But as Bap­at not­ed, the Supreme Court bought the right to work move­men­t’s claim that the home is not a union work­place’ hook, line and sinker.”

The major­i­ty in Har­ris stopped short of over­turn­ing the Supreme Court’s pri­or deci­sion Abood v. Detroit Bd. of Ed. (1977), which would have reversed the rul­ing that pub­lic-sec­tor work­ers can be required to pay rep­re­sen­ta­tion fees to the union that rep­re­sents them, there­by affect­ing all pub­lic-sec­tor work­ers. Ali­to did strong­ly crit­i­cize that deci­sion, call­ing it ques­tion­able on sev­er­al grounds” and invit­ing spec­u­la­tion that the Right to Work Foun­da­tion could pur­sue anoth­er law­suit with even broad­er impact on pub­lic-sec­tor unions. For now, though, the Court instead chose to sin­gle out the home health­care aides as par­tial” work­ers — a not-quite-as-seri­ous type of work­er per­haps, who is once again exclud­ed from rules that apply to others.

The home is indeed a dif­fer­ent kind of work­place than most oth­ers: It is far more dif­fi­cult to orga­nize a large group of work­ers who do not share a com­mon shop floor. While it is always a chal­lenge for a union to sign up a large num­ber of work­ers to pay dues vol­un­tar­i­ly when they can get the ben­e­fits of union rep­re­sen­ta­tion with­out it, it is near­ly impos­si­ble to do so when that would entail going home by home, indi­vid­ual work­place by indi­vid­ual work­place. The par­tic­u­lar union in ques­tion, SEIU – HCII, cur­rent­ly rep­re­sents more than 50,000 home­care aides; imag­ine hav­ing to vis­it 50,000 indi­vid­ual work­places to col­lect dues each month.

One effect of the deci­sion, there­fore, may be that unions make it less of a pri­or­i­ty to orga­nize home­care work­ers than oth­er work­ers from whom they can more eas­i­ly col­lect dues. In that event, the rais­es and improve­ments in con­di­tions won by union­iz­ing will be hard­er and hard­er to achieve for home­care workers. 

Ali­to’s deci­sion in Har­ris also weighs in on the ques­tion of who ulti­mate­ly employs the grow­ing num­ber of work­ers labor­ing under a con­fus­ing web of con­tracts and sub­con­tracts. As Supreme Court watch­ers at SCO­TUS­blog explained, One of the key points of the Har­ris deci­sion is that the cus­tomer (i.e., the patient) is the nom­i­nal employ­er of the home-car­er.” Ali­to argues that while the state pro­vides the pay­check, cus­tomers con­trol most of the rela­tion­ship with the care work­er — which in Pamela Har­ris’ case, implies that her son is in fact her boss. One would not assume that the patient in a hos­pi­tal is the ulti­mate employ­er of the nurse who cares for them, but in this case, it seems, the patient is assumed to be the boss. 

Har­ris and Hob­by Lob­by are both cas­es about health­care and how it will be pro­vid­ed and paid for. In the case of Har­ris, the Court implies that health­care paid for by the state is still the indi­vid­ual respon­si­bil­i­ty of the recip­i­ent of care; in Hob­by Lob­by, an employ­er required by the gov­ern­ment to include health­care as a part of a com­pen­sa­tion pack­age is able to dodge the require­ment to pro­vide a cer­tain kind of care for a cer­tain kind of work­er — leav­ing that work­er ulti­mate­ly respon­si­ble for her own health­care. In each case, the ulti­mate deci­sion of the court is that health­care is an indi­vid­ual, not a social, responsibility. 

The Afford­able Care Act, passed in 2010, requires large employ­ers to include in the health­care plans for their employ­ees cer­tain types of cov­er­age — among them con­tra­cep­tives. The own­ers of the Hob­by Lob­by cor­po­ra­tion, a chain of 500 craft­ing stores with 13,000 employ­ees across the coun­try, object to cer­tain of those birth con­trol meth­ods, and sued to avoid hav­ing to pro­vide that insur­ance. The Court ruled in Hob­by Lob­by that birth con­trol is dif­fer­ent from oth­er forms of health­care, and that an employ­er there­fore has the right to pass judg­ment on their employ­ees’ repro­duc­tive and sex­u­al health­care deci­sions by virtue of their reli­gious beliefs — at least, if the employ­er is a close­ly held” cor­po­ra­tion, with at least half its shares owned by five or few­er indi­vid­u­als Such cor­po­ra­tions employ more than half of the Amer­i­can work­force, accord­ing to one 2009 study. (So as long as you work for some­one with some seri­ous­ly con­cen­trat­ed pow­er, in oth­er words, your birth con­trol is up to their beliefs.)

The major­i­ty deci­sion was based on the Reli­gious Free­dom Restora­tion Act (RFRA), a 1993 law signed by Bill Clin­ton, which says, Gov­ern­ment shall not sub­stan­tial­ly bur­den a person’s exer­cise of reli­gion even if the bur­den results from a rule of gen­er­al applic­a­bil­i­ty.” The Hob­by Lob­by rul­ing applies this to close­ly held cor­po­ra­tions the way it would to non­prof­it reli­gious organizations.

As SCO­TUS­blog not­ed, The Court holds that cor­po­ra­tions (includ­ing for-prof­it cor­po­ra­tions) are per­sons’ for pur­pos­es of RFRA. The addi­tion­al ques­tion was whether cor­po­ra­tions can have a reli­gious belief” with­in the mean­ing of RFRA. On that ques­tion, the Court lim­its its hold­ing to close­ly held cor­po­ra­tions, leav­ing for anoth­er day whether larg­er, pub­licly trad­ed cor­po­ra­tions have reli­gious beliefs.” 

This means that work­ers at Hob­by Lob­by, rel­a­tive­ly low-wage retail employ­ees (though the com­pa­ny has raised its wages to $14 an hour for full-timers, $9.50 for part-timers) will either have to buy their own birth con­trol, or, as SCO­TUS­blog not­ed, the Oba­ma admin­is­tra­tion may fig­ure out a way for the gov­ern­ment to pay for the coverage.

Under our cur­rent sys­tem, employ­er-fund­ed health­care is part of com­pen­sa­tion pro­vid­ed by one’s employ­er. If, of course, we had a sin­gle-pay­er health­care sys­tem or some­thing like it, employ­ers would not be required to pay for insur­ance direct­ly at all (though the long­stand­ing Hyde Amend­ment, which bans pub­lic fund­ing for abor­tion, implies that con­ser­v­a­tives cer­tain­ly won’t stop at try­ing to halt direct employ­er-pro­vid­ed cov­er­age for repro­duc­tive and sex­u­al health­care). Jus­tice Kennedy implies in his con­cur­ring deci­sion that the gov­ern­ment fund­ing birth con­trol direct­ly would be accept­able, at least to him, but for the moment, I’m not going to re-argue the sin­gle pay­er ques­tion. (See my recent piece on the sub­ject for more.)

Though employ­er-sub­si­dized health­care is some­times referred to as a ben­e­fit,” as if health insur­ance is a gift, it is as much yours as are the wages you have worked for. The deci­sion in Hob­by Lob­by, then, says that boss­es can decide that cer­tain parts of a work­er’s com­pen­sa­tion are against their reli­gion. Though the deci­sion, as not­ed above, is tai­lored nar­row­ly to exclude only con­tra­cep­tives, it’s worth not­ing again that employ­er-pro­vid­ed health­care became a norm because work­ers strug­gled and bar­gained for it, not because employ­ers decid­ed once upon a time to be nice. 

We’ve long known that low-wage work­ers have very few rights on the job, that their boss­es are able to inter­fere in all sorts of per­son­al deci­sions. In this case, it’s the par­tic­u­lar nature of the ben­e­fit denied that is worth explor­ing for a moment. Eileen Boris, author with Jen­nifer Klein of Car­ing for Amer­i­ca: Home Health Work­ers in the Shad­ow of the Wel­fare State, has not­ed that par­tic­u­lar ideas of inti­ma­cy and dirt” influ­ence how we think about home health­care work­ers and the work they do, which often involves expo­sure to bod­i­ly process­es that are extra­or­di­nar­i­ly inti­mate. In the case of con­tra­cep­tion, too, we see ideas of inti­ma­cy and dirt com­ing into play — sex­u­al­i­ty is dirty, and inti­mate deci­sions can in part be influ­enced by one’s boss. By rul­ing, in the­o­ry, that the state can­not make an employ­er pro­vide health insur­ance that cov­ers birth con­trol, or require that home­care work­ers pay the costs of their rep­re­sen­ta­tion to the union, the court is in fact weigh­ing in on the inti­mate rela­tion­ships of thou­sands of workers.

Jus­tice Ele­na Kagan, in her dis­sent to Har­ris, point­ed out that the care pro­vid­ed by home­care work­ers is bet­ter when the work­ers are val­ued and paid bet­ter — things that have hap­pened since they have had the right to union rep­re­sen­ta­tion. In this way, she argues, the inter­ests of the work­ers and the care recip­i­ents are not in oppo­si­tion, as Ali­to’s opin­ion implies — they are actu­al­ly aligned. The state­ment of Hob­by Lob­by’s CEO on rais­ing wages indi­cates that Hob­by Lob­by, too, under­stands that work­ers do a bet­ter job when they are prop­er­ly cared for. That includes, or should include, the right to make their own health­care deci­sions, when it comes to con­tra­cep­tion or any­thing else.

The con­ser­v­a­tives push­ing both of these cas­es would have you believe that these are cas­es about free­dom — the free­dom to avoid a union, the free­dom to prac­tice reli­gion. And yet what they wind up being about is reduc­ing pow­er on the job for thou­sands of most­ly women, most­ly low-paid work­ers across the country.

Attacks on all work­ers’ rights often come first through attacks on those deemed less impor­tant work­ers. When we decide that birth con­trol isn’t a piv­otal issue because it only affects some work­ers, or that home­care work­ers’ loss is not a loss for us all, we leave the door open for the next attack.

And so, in a coun­try where these fem­i­nized per­son­al ser­vice jobs are increas­ing­ly the only jobs avail­able, the court con­tin­ues to rule that work­ers’ rights are less impor­tant than the boss­es’, that pro­tec­tions on the job are a lux­u­ry work­ing-class women can’t afford. 

Sarah Jaffe is a for­mer staff writer at In These Times and author of Nec­es­sary Trou­ble: Amer­i­cans in Revolt , which Robin D.G. Kel­ley called The most com­pelling social and polit­i­cal por­trait of our age.” You can fol­low her on Twit­ter @sarahljaffe.
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