Today, 5 conservative men on the Supreme Court decided that a core part of women's health cannot be part of required employer-provided insurance coverage - even if the additional coverage costs nothing - at least as applied to private, family-owned corporations. All of the court's female justices were joined by Justice Breyer in a strong and scathing dissent.
While the Court's contempt for women is palpably clear along with its pro-corporate color in every part of the reasoning, it does, however, leave Democrats a major political opening when it comes to contraception. The majority decision, though it struck down the contraception mandate for some employers, left two main silver linings for those of us who believe in women's rights.
First, the majority explicitly held that HHS could in fact levy a contraception mandate - on insurance companies. In its language, the opinion refers to the method of contraception coverage HHS uses for employers already exempt from the contraception mandate (churches and other religious nonprofits) - requiring insurance companies to provide the coverage, outside of the employers' policies but with no additional cost to the insured. The Court suggests, more than once, that it could be used in this circumstance.
The opinion goes onto explain that it is precisely because of this regulation on insurance companies that the government has failed to meet the burden of showing that the employer mandate on contraception is the least intrusive way to implement the goal of contraceptive coverage, which even the majority opinion concedes is a compelling government interest.
Expect the administration to implement a quick fix via this method, still allowing women to have full coverage.
Secondly, and more importantly, the decision relies on a law passed by Congress - the Religious Freedom Restoration Act (1993 thanks, Bill Clinton) - and not the First Amendment. Despite conservative euphoria, the Court in fact did not hold that the First Amendment protects the rights of a corporation to make health care decisions for its employees.
Instead the Court held that since the Affordable Care Act does not explicitly define what preventive care measures must be accounted for in insurance plans, it did not override the RFRA's (crackpot) employer religious freedom clause. Therefore, it ruled, HHS violated RFRA.
RFRA is an act of Congress, and it can be overridden by an act of Congress. Therein lies the major opening for Democrats in 2014 and in 2016. This decision not only puts the Right wing's war on women back on the forefront just in time for the midterms, it points to a specific cure: have Congress change the law to override the Court's decision. If Democrats wanted to run on a single issue from now to November, it should be a promise to write into the law protections for contraceptive coverage should we win back the House and keep the Senate.
By deciding this case on the legal grounds rather than the Constitutional, the Supreme Court has given each citizen a major responsibility to deeply consider and decide what their individual votes are going to mean for women's health in this country. The issue is no longer as abstract as electing presidents who will appoint judges who believe in a women's right to choose their own health care. In this case, the critical issue is no longer the political branches of government as proxy for the judges, it is now the political branches themselves, upon whom the Court seems to have left the responsibility to change the law.
It is time that we, as Americans, found out what everyone asking for our votes stands on women's health. Do they believe in employers' "right" to restrict the use of health care by their employees, and if they do not, are they willing to repeal aspects of the law that the Supreme Court says enables employers to do just that?
If we want to beat back the unprecedented attack on women's health care, then we must take responsibility to end the Republicans' war on women once and for all. We must take responsibility not to allow 2014 to become just any other midterm. We must take responsibility to stop right wing corporations from chipping away at women's healthy, bit by bit turning them into second class citizens.
The Supreme Court may have dealt a blow today to women's rights to make their own health care decisions without having their employers' religious beliefs imposed on them, but they have also pointed to a way to hit back. A Democratic, pro-choice Congress is the only thing capable of reversing this travesty.
So if you even remotely care about women's rights, gender equality, and the freedom of all Americans to make our own health care decisions, then quit being outraged and start getting organized. Leave behind all of your trepidation about why the Democratic party isn't perfect and how President Obama has "disappointed" you. You have no right to be outraged by today's decision if you do not show up to the polls in November and ensure the election of a Congress that will override the law that the Supreme Court says allows for employers to control the reproductive lives of their employees.
This November, we will not elect a president. But our votes will be just as important as any presidential election. It's not enough to keep from the White House the party waging a war on women. We must rout it from national power altogether.