Ginsberg Dissent on Obamacare Contraception Choice

Sometimes a U. S. Supreme Court dissent is more well-known and more influential than the majority opinion.  The dissent written by Ruth Bader Ginsberg last month in Burwell v. Hobby Lobby, is one of those times.

 The majority opinion in Burwell invalidated the Affordable Care Act’s contraception mandate.  In her 35-page dissent, Ginsburg argued that the Court’s majority decision would allow closely held corporations to opt out of almost any law that they deemed “incompatible with their sincerely held religious beliefs.” Ginsburg, who believes her male colleagues have “ventured into a minefield,” further stated: 

 “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.” 

 As Ginsburg noted in a 2011 law review article, our practice of publishing signed majority and dissenting opinions is not universal. In the United States, the Court announces one decision, yet every justice has the prerogative to author a separate opinion. The British tradition allows each member of the court to write separately, while many European civil law countries only release one unified decision.  

 While Ginsburg appreciates the value of unanimous opinions, she argues it is important for justices to to speak in dissent when important matters are at stake.  Her colleagues agree. According to Justice Scalia, “When history demonstrates that one of the Court’s decisions has been a truly horrendous mistake, it is comforting . . . to look back and realize that at least some of the [J]ustices saw the danger clearly and gave voice, often eloquent voice, to their concern.”  

 Justice Benjamin Curtis’s dissent in the 1857 Dred Scott v. Sandford decision is a classic example. The majority of the Court held that people of African descent whose ancestors were brought to our country as slaves could never become American citizens. Justice Curtis argued that, at the time our country was founded, African Americans were “citizens of at least five States, and so in every sense part of the people of the United States,” and, therefore, “among those for whom and whose posterity the Constitution was ordained and established.”  

Nearly 40 years later, Justice John Marshall Harlan famously objected to the “separate but equal” principle articulated by the majority in Plessy v. Ferguson. “Everyone knows,” he wrote, “that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.”

While dissenting opinions do not become law, these opinions demonstrate that they still have the ability to shape the debate. As Chief Justice Charles Evan Hughes eloquently stated: “A dissent in a Court of last resort is an appeal . . . to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

Justice Ginsburg was successful at spurring Congress to action through her dissenting opinion in Ledbetter v. Goodyear Tire & Rubber Co. When her colleagues interpreted Title VII of the Civil Rights Act to find that Lilly Ledbetter filed her unequal pay lawsuit too late, Ginsburg urged Congress to “to correct [the Supreme] Court’s parsimonious reading of Title VII.” They did, passing the Lilly Ledbetter Fair Pay Act two years later. It will be interesting to see how her latest dissent on the contraception mandate is received in the White House and on Capitol Hill.

For a more in-depth discussion of the Hobby Lobby decision, please visit the Constitutional Law Reporter.

See also, How Will Hobby Lobby Decision Impact New Jersey Businesses? on Business Law News for further information on how this recent U.S. Supreme Court decision will affect New Jersey.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs. Ginsberg Dissent on Obamacare Contraception Choice