By Kurt Gonska on March 24, 2014
By Josh Eidelson, originally published in Salon
For 90 minutes Tuesday morning, the Supreme Court will hear arguments over whether a for-profit company’s religious objections should trump the Affordable Care Act requirement that insurance plans include contraception.
That decision, Hobby Lobby v. Sebelius, “has the potential to be very disastrous,” said Sandra Fluke, the activist attorney and state Senate candidate who became a national name when Rush Limbaugh attacked her advocacy for contraceptive coverage. In an interview late last week, Fluke warned of far-reaching consequences for women’s and workers’ rights; responded to arguments from Ted Cruz, Mike Huckabee and Rick Perry, and weighed in on California’s intra-Democratic disagreements over fracking, prisons and labor. A condensed version of our conversation follows.
What is the worst-case scenario here in terms of what the court could do?
Well, unfortunately, the worst-case scenario is a really frightening scenario …
This decision by the Supreme Court has the potential to be very disastrous. Not only for the women who could lose access – affordable access – to comprehensive reproductive healthcare, because their for-profit bosses could decide to deny that access. But also because it could really damage the careful balance of our religious liberty protections, which we’ve all fought to create for so long.
There’s real possibility for damage here, in that it could allow for-profit corporations and their owners to decide which types of healthcare are important enough to be covered on insurance for their employees. And given that the vast majority of us get our insurance … through our employers, this could have grave consequences for health insurance access — for affordable healthcare access. But also for a host of other legal protections …
The same reasoning that protects the laws that are at stake on Tuesday is the reasoning that protects our non-discrimination laws. And we’ve seen in the past employers who have said that they should not have to pay women and men equal wages, because that was against their belief … We’ve seen even recently challenges saying that they should not have to employ persons who are gay.
There could be wide-ranging impacts.
Ted Cruz and a few of his Senate colleagues submitted an amicus brief arguing the Obama administration has been “refusing to enforce” other ACA provisions for “its own secular policy reasons,” and “The federal government cannot grant special favor to the secular over the religious. Accordingly, the contraception mandate cannot withstand scrutiny under either the First Amendment or the Religious Freedom Restoration Act.” What do you make of that argument?
I think that the Affordable Care Act is a massive piece of legislation that needs to be implemented in a careful and thoughtful manner. And that’s what all of us as advocates are pushing for. And I believe that that’s what the administration is striving to do. And that any provisions that have been temporarily delayed or altered, that’s to make the law function smoothly and to ensure that the most people have affordable access to health insurance coverage.
And it’s not about prioritizing one group of citizens over another. It’s about how to roll out this implementation in a way that is beneficial for the most folks.
The idea that the government is trying to “grant special favor to the secular over the religious” – do you see any grounds for that?
In the past couple of years, we’ve seen a Supreme Court decision finding that the “ministerial exception” protected a church-run school even if it fired a teacher for asserting her rights under the Americans With Disabilities Act; we’ve seen a firestorm of controversy over the vetoed Arizona bill that would have strengthened the right to deny people service due to religious convictions; we’ve seen debates among supporters of the Employment Non-Discrimination Act about how broadly to exempt religious employers; and we see this Supreme Court challenge to the contraception mandate. Is there any guiding principle you bring to bear in considering each of these cases?
I think that we have to protect religious beliefs of individuals, but a corporation does not have religious beliefs. A corporation is not a person.
And this — many of these cases — are really trying to build upon the damage done by the Citizens United decision. So I believe in protecting the religious beliefs of individuals, but not in corporations.
And I believe that when you enter into the marketplace as a corporation, and choose to do business with the public and have employees, then the public and those employees also deserve protection. And it’s about finding the right balance of ensuring everyone’s health and safety and access to healthcare, and that other people are able to access the services and employment that they need, while continuing to protect the religious beliefs of individuals.
Should there be civil rights protection in public accommodation for people who are LGBT?
Is that something that should happen at the state level, or federal level, or both?
I think it should be at both levels. And a number of states have those types of protections. But we need them in every state and federally as well.
Is it good policy to give religious objections greater deference than other kinds of objections someone might have based in moral convictions?
Well, I think we need to look at all moral objections similarly. We should not be in the business of determining which religious convictions are more sincere or more reasonable than others.
And that really points to part of the problem here … If we allow for-profit corporations and owners to have freedom to not follow generally applicable laws that everyone else follows, then we are potentially granting that ability to some folks with very, very extreme and dangerous beliefs.
Rush Limbaugh got a lot of attention for calling you a “slut.” Did his comments reveal anything broader about Republican or conservative attitudes about women or about sex?
I think that what was revealed in those comments is that there are still a lot of folks who want to silence particular communities — not only women, but also people of color and LGBTQ folks. And it’s up to the rest of us, who are members of those communities and allies, to stand up and ensure that everyone’s voices are heard in this country.
Turning then to California: Sen. Leno and Sen. Steinberg are proposing to hike the state minimum wage to $13 an hour in 2017. Would you support that bill?
I believe that we do need to have a living wage for all workers. I’ve been supportive of efforts here in Los Angeles to have hotel employees at some of the large hotels be sure that they have a living wage, and I’ve stood with fast food workers on that effort as well. We recently did increase the minimum wage, gradually, statewide, and we still have some distance to go on getting to a living wage for all workers.
So is the $13 bill one that you would support?
I would want to look at the details of that particular bill closely. But in general I support increasing the minimum wage, so that we can get all workers to a living wage, and the rest of us can have the benefit of them spending in our economy, supporting small businesses, and supporting our economy statewide.
The California Democratic Party convention saw some protests and controversy over fracking. Sen. Leno and Sen. Mitchell are proposing a moratorium on fracking. Is that something you would support?
Yes. Absolutely. I have been working with members of the City Council in Los Angeles to ensure that we have a moratorium here and I believe that we need that statewide. Fracking, as well as other similar methods of extracting oil from our natural resources, is very dangerous. Not only to the health of our community members, but also to our environment. And especially here in California, where we have even just recently had an earthquake, it’s very, very reckless … given the kind of seismic disruptions it can cause.
Last year a report found that California has more of its prisoners currently serving time out-of-state than the [number of out-of-state prisoners from the] other 49 states combined … Activists have pushed Gov. Brown to reduce the number of Californians in jail – by 20,000, according to one estimate – with reforms like expanding “good time” custody credits. The state corrections department told me the governor “has no intention of approving the early release of thousands of inmates.” Who’s right on this?
I think that early releases is a little bit complicated. But the general movement that we need to be making is toward reform of our criminal justice system, so that we are not criminalizing folks for nonviolent low-level offenses, drug offenses. We need to have better programs for treatment and retraining and rehabilitation options. And we certainly need to stop privatizing our prison system within California and stop having people out of state as well.
Does that mean legalizing some currently illegal drugs, or just decriminalizing them, or something else?
When it comes to something like recreational marijuana, I think most of us here in California really are on the same page: That that’s a way to increase our tax base; that there are not medical consequences for folks; and that there is a way to regulate this safely. And it would end a civil rights concern of many communities of color that are disproportionately impacted by those arrests.
Is there more that the governor should be doing using executive authority on reducing the prison population in California?
I actually think that the governor and the Legislature should be working together, rather than executive action necessarily. And we’ve seen some good proposals put forward, and I’m optimistic that we’ll see more as well.
You’ve backed California’s Domestic Worker Bill of Rights, which was signed by the governor last year after he’d vetoed it in 2012. Given their supermajorities, should Democrats have overridden that veto in 2012 rather than having to bring the bill back the next year?
I think what matters here is that we got the bill passed, and that we expanded employment protections for domestic workers to a place that, at least on overtime pay, is comparable with other workers. They should not have fewer protections because of their working in the home, or because this is an industry that’s historically been discriminated against in our employment protections.
I’m very proud of the domestic workers who I stood with, and the long fight that we had on this bill – and got it done.
More generally, given the supermajorities that they have, should Democrats in the Legislature be quicker to override [Jerry Brown] vetoes, or to threaten the ability to override vetoes when they’re negotiating with the governor?
I think the finer negotiating points are not really the goal here. The goal is that we should be creating a progressive future for our state, and setting a model for other states. And how we do that — I would certainly prefer to see that done in cooperation between the governor and the Legislature.
I think we have a lot of possibilities of progress. But we need some new voices, from some fresh perspectives in Sacramento. And that’s why I want to be able to go to Sacramento, and be a progressive voice on these issues …
At the CPAC convention this year a number of speakers … were counterposing blue states and red states, and arguing that the results bear out their model. Rick Perry said that it is cheaper to get a U-Haul from Texas to California than vice versa. You heard this argument over and over again that people are voting against California with their feet, that the policies there don’t work. What do you make of that kind of argument?
Well, California is in the middle of a success story. We turned around our state budget and our fiscal future, and we are beginning to – and need to – reinvest in our social services coming out of this recession. And the people of California are strongly behind that direction. Just in 2012, we passed Proposition 30 [raising taxes] to ensure that we were reinvesting in our public education system. So California is moving in the right direction, and I look for a lot of other states to follow our example …
Gov. Huckabee … said that Democrats want women to “believe that they are helpless without Uncle Sugar coming in and providing them a prescription each month for birth control because they cannot control their libido or their reproductive system without the help of the government.” What do you make of that?
It’s ridiculous. Women are the ones standing up and fighting for reproductive health protections, and pushing for legislation that ensures affordable access to reproductive healthcare for our poorest sisters in our communities …
It’s just insulting to insinuate otherwise.