Exclusive - Dahlia Lithwick Extended Interview Pt. 2

  • Aired:  07/14/14
  •  | Views: 45,100

Slate's Dahlia Lithwick discusses several recent Supreme Court rulings that have prioritized the rights of everyone but women. (6:02)

[APPLAUSE]>> Jon: ALL RIGHT.

WE'RE TALKING TO DAHLIALITHWICK, SLATE.COM.

SHE'S JUST HAD A VERY EVENTFULSUPREME COURT SEASON.

IS THAT... IS THERE A TERM FORIT?

IS IT LIKE UP FRONTS?

HOW DO, HOW DO THEY DESCRIBETHEIR SEASON?

>> YOU KNOW, THEY PRETEND LIKETHE LAST TWO WEEKS ARE NO

DIFFERENT FROM THE REST OF IT.>> Jon: RIGHT.

>> SO THERE IS NO WORD FOR IT.

THE WORD IS LIKE "BRING AFLASK."

>> RIGHT.

[LAUGHTER]I MEAN, THERE'S NO... GREAT.

DON'T TELL MY BOSSES I JUST SAIDTHAT. BUT I THINK THAT...

>> Jon: THIS IS ON THE TV, SOTHAT WILL BE TOUGH.

LET'S TALK ABOUT THE OTHERS,BECAUSE IT DOES SEEM LIKE WOMEN

IN PARTICULAR, THEIRCIRCUMSTANCE, EVERYBODY ELSE'S

RIGHTS IN THESE DECISIONS TRUMPTHE RIGHTS OF WOMEN FOR SOME

REASON, AS THOUGH THE COURT ISSAYING TO WOMEN, YOU KNOW, IN

THE CASE OF AN ABORTION CLINIC,YEAH, YOU JUST HAVEN'T BEEN

TALKED TO PROPERLY ABOUT IT.

IN THE CASE OF CONTRACEPTION,YOU SHOULDN'T BE ABLE TO HAVE

THAT AND HAVE THEM PAY FOR IT.

IT'S ALMOST CHASTISING THEMBEHAVIORALLY.

>> THIS HAS BEEN MAKING MECRAZY, THIS TERM.

>> Jon: YEP. >> BECAUSE I'VE BEEN A

SUPREME COURT REPORTER FOR ITHINK 14 YEARS.

AND THIS IS THE FIRST ONE WHEREI'M LIKE... AND I HAVE OVARIES.

LIKE I'M REALLY UPSET ABOUTTHIS.

>> Jon: CAN I TELL YOUSOMETHING, I DIDN'T KNOW WHERE

YOU WERE GOING WITH THOSE? IDIDN'T KNOW WHERE YOU WERE GOING

WITH IT. I SAW THIS.>> I WAS DOING A LOT OF THAT.

>> Jon: I THOUGHT YOU WERE GOINGTO SAY, LIKE, YOU KNOW,

"I HAVE A TERRIBLESHAKING PROBLEM."

I DON'T KNOW.

[LAUGHTER]>> I'M...

>> Jon: YOU HAVE OVARIES.

>> I'M SO OVARIED... SO, SO, BUT

WHAT'S REALLY TROUBLING IS THISIS FIRST TERM WHERE I REALLY

FEEL LIKE YOU READ THESE SPLITS,THESE GENDER SPLITS, THESE

RELIGION SPLITS, AND THECOURT IS KIND OF... THE

FRACTURES ON THE COURT AREREALLY EXPOSED, AND I THINK IT'S

NOT AN ACCIDENT, JON, THAT INTHE SPAN OF A WEEK WE GET

GINSBURG DISSENTING IN THE HOBBYLOBBY CASE, WE GET SOTOMAYOR

DISSENTING IN THAT WHEATON ORDERSAYING YOU ALL JUST FOOLED US.

>> Jon: THAT WAS A SNEAKYMOVE.

FOR THOSE YOU DON'T KNOW, THEYDID THIS VERY NARROW RULING

FOR HOBBY LOBBY, SAYING THISONLY APPLIES TO A VERY

NARROW CLOSELY HELD CORPORATION,JUST THESE FOUR THINGS,

AND THEN THIS OTHER GROUPSUED THAT THEY DON'T HAVE TO

FILL OUT THE PAPERWORK TO HAVETHE BURDEN OF THE FINANCE

FOR CONTRACEPTION SHIFTED TO THESTATE FOR RELIGIOUS PURPOSES,

AND THEY GOT A STAY ON FILLINGOUT PAPERWORK.

>> RIGHT. AND THIS IS... I MEAN,

TECHNICALLY, SO ALL OFTHESE CONSCIENCE

EXEMPTIONS, THEY DON'T APPLY TOANY CHURCHES.

SO THAT'S FIRST THING.

THIS APPLIES ONLY TO THENOT-FOR-PROFITS OR THE NOW THE

FOR-PROFITS. SO THE DIFFERENCEBETWEEN WHEATON AND HOBBY LOBBY

WAS WHEATON WAS ANOT-FOR-PROFIT. RIGHT?

IT'S A COLLEGE.

AND SO THERE'S A SLIGHTLYDIFFERENT ANALYSIS THAT THE

COURT DOES THAT THEY DIDN'T DOIN HOBBY LOBBY.

BUT, YOU'RE EXACTLY RIGHT.IF THE TAKEAWAY FROM HOBBY LOBBY

WAS THAT FIVE JUSTICES SAID, YOUKNOW WHAT,

THERE'S AN EASIER WAY TO DO THISTHAN TO FORCE HOBBY LOBBY TO

PROVIDE CONTRACEPTION AND THATEASIER WAY IS THIS FORM AND THEN

THREE DAYS LATER THEY'RE, LIKE,OH, FORM, THAT'S NOT GOING TO

WORK EITHER.

AND I DESCRIBED IT SOMEWHERE ASLIKE THEY GAVE YOU A LOANER AND

THEN IT BROKE DOWN A BLOCKAFTER YOU GOT OFF THE LOT.

YOU KNOW?>> Jon: RIGHT.

>> THEY'RE LIKE, THE FORMDOESN'T WORK EITHER.

>> BUT WHAT I DON'T UNDERSTANDIS, OK SO THE IDEA IS THEY

OBJECT TO HAVING TO PAY FORCONTRACEPTION FOR IN THE

HEALTH PROGRAM, ALTHOUGH, TO BEFAIR, BEFORE OBAMACARE,

APPARENTLY HOBBY LOBBY'S HEALTHPLAN DID COVER THAT, AND THAT

JUST DECIDED AFTER OBAMACARETHAT THEY WERE AGAINST IT.

>> RIGHT.

THAT'S RIGHT.

UNTIL OBAMACARE CAME, THEYCOVERED THE "ABORTIFACIENTS"

THAT THEY NOW OBJECT TO.>> Jon: RIGHT.

>> AND THE OTHER THING THAT'S SOIMPORTANT ABOUT THIS CASE, JON,

IS THESE ARE ONLY FOUR THINGS OFTHE 20 THAT OBAMACARE SAYS THAT

YOU HAVE TO NOW PROVIDE. THESEARE ONLY FOUR, AND IT'S

SORT OF EASY TO SAY, WELL, YOUKNOW, THERE'S ALWAYS CONDOMS.

THERE'S ALWAYS SOMETHING ELSE,BUT THERE ARE CASES COMING DOWN

THE PIKE OF EMPLOYERS WHO OBJECTTO ALL 20.

>> Jon: RIGHT.

>> SO THIS CASE, AND, YOU KNOW,I THINK AS YOU SAID IN LIKE YOUR

LEAD-UP, THERE IS NO LIMITINGPRINCIPLE OTHER THAN, TRUST US,

WE'RE NOT GOING TO BE CRAZY.

>> ONCE YOU GIVE SOMEBODY ARIGHT, IF YOU SAY TO THEM, YOU A

RIGHT TO CONSCIENTIOUSLY OBJECT,WHICH BY THE WAY, FINE, I DON'T

TAKE THAT RIGHT AWAY FROM APERSON WHO CONSCIENTIOUSLY

OBJECTS TO IT.

I DON'T UNDERSTAND WHY THATRIGHT TRUMPS YOUR EMPLOYEE'S

RIGHT.

BUT ONCE YOU GIVE THEM A RIGHT,HOW DO YOU NOT EXPAND IT?

HOW DO YOU SAY, IT'S YOUR RIGHT,BUT ONLY IN THIS VERY NARROW...

IT SEEMS TO ME THAT THEYABSOLUTELY WILL HAVE TO EXPAND

THIS.

>> WELL, SO THERE ARE TWO THINGSTHAT I THINK THAT ARE VERY SCARY

THAT ARE GOING TO COME OF THIS.ONE IS, AND I THINK YOU ELUDED

TO IT, THE COURT SAYS OHWELL THERE IS A

COMPELLING INTEREST, RIGHT,THAT'S WHAT THE TEST REQUIRES,

IN GETTING CONTRACEPTION TOWOMEN, AND WE'RE GOING TO KIND

OF CONCEDE THAT FOR PURPOSE OFARGUMENT, BUT NOWHERE ARE WE

GOING TO ACKNOWLEDGE IT.

THE WORD WOMEN APPEARS 13 TIMESIN THE ENTIRETY OF THE MAJORITY.

>> AND ALWAYS IN QUOTES.

>> Jon: "WOMEN.">> "WOMEN." THEM "WOMEN."

>> Jon: IT'S ALWAYS ALITO WILLMAKE AN ARGUMENT, AT THE END OF

IT HE'LL JUST GO "WOMEN."

>> WITH THEIR OVARIES. RIGHT.NO, AND SO I THINK THAT

ONE POSSIBILITY IS THAT THIS ISJUST SEEN AS AN UNSERIOUS

MEDICAL PROBLEM. AND IT'SSOMEWHERE IN THE OPINION,

THERE'S LIKE, THIS WOULD BEDIFFERENT IF IT WAS

VACCINATIONS, YOU KNOW, A REALCOMPELLING HEALTH INTEREST.

AND FOR WOMEN WHO DIE BECAUSETHEY CAN'T GET ACCESS TO

CONTRACEPTION, IT'S NOTDIFFERENT.

>> Jon: RIGHT.

>> THE OTHER THING THAT'S REALLYSCARY IS THAT IF THE COURT

CONCEDES, AS YOU SAID, THATWE'RE NOT GOING TO SCRUTINIZE

HOW DEEPLY HELD THEIRBELIEFS ARE. WE'RE NOT GOING

TO SCRUTINIZE THE SCIENCE... >> Jon: OR IF THEY'RE TRUE.

>> WE'RE LOOKING AT NONE OFTHAT.

THAT'S IMPROPER.>> Jon: RIGHT.

>> THAT EITHER MEANS THAT HOBBYLOBBY IS SPECIAL OR IT MEANS

THAT WHEN THE WICCAN EMPLOYERCOMES ALONG, WE'RE GOING TO

CONCEDE TO THEM, TOO.>> Jon: RIGHT.

>> AND SO THE REAL FEAR FOR MEUNDERGIRDING THIS CASE IS THAT

EITHER WOMEN ARE UNSPECIAL FORTHEIR MEDICAL HEALTH NEEDS OR

THAT, YOU KNOW, EVANGELICALCHRISTIAN EMPLOYERS ARE EXTRA

SPECIAL.

AND I THINK THERE'S NO WAY TOFLATTEN THAT PLAYING FIELD SO

THAT EVERYONE GETS TREATED THESAME.

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