Can your boss interfere with your reproductive choices?

What’s at stake in Hobby Lobby v. Sebelius and Conestoga Wood Specialties v. Sebelius

theofficegraphicThe Affordable Care Act (ACA) requires health insurance plans to provide all Americans with access to preventive care without out-of-pocket costs.  For women, that care includes access to common forms of birth control.

Nonprofit religious organizations, such as houses of worship, are exempt on the theory that the requirement might contradict the religious missions of the institutions themselves.

But now two private for-profit corporations, Hobby Lobby and Conestoga Wood Specialties, are arguing before the Supreme Court that, solely because their owners say they have religious objections to some forms of birth control, the corporations should be allowed to inflict their religious beliefs on all of their employees by refusing to cover birth control in employer provided health insurance.  Other businesses have brought similar suits.

The businesses cite the First Amendment and a law called the Religious Freedom Restoration Act, which prohibits a government action that places a substantial burden on an individual’s religious practice unless there is a compelling government interest in that action.

These kinds of cases are one more example of the threats to reproductive rights outlined in AFJ’s video Roe at Risk.

If the Supreme Court agrees, it will radically reinterpret federal law – and potentially the United States Constitution.  It will be saying, in effect, not only that corporations are people, but that they are people who can impose burdens on others based on what the boss proclaims are the corporation’s religious beliefs.  That could open the floodgates to denying not only contraception, but all sorts of other rights and benefits to Americans from every walk of life.

The need for birth control coverage

The Affordable Care Act requires insurance plans to cover birth control methods approved by the Food and Drug Administration without additional costs or copays beyond the premiums already paid by the person who is insured.

The decision to require contraceptive coverage was based on a recommendation of the federal government’s Institute of Medicine, which found that birth control is fundamental to improving the health of women and their families.

As Planned Parenthood Federation of America points out:

  • Ninety-nine percent of sexually active American women have used birth control.
  • Thanks to widely available birth control maternal and infant health have improved dramatically and infant mortality has plummeted.
  • A project that simulated the effects of the ACA birth control benefit found that among those taking part, teen birth rates were less than a fifth of the national rate, and the rate of abortions was less than half the national rate.
  • Nearly 60 percent of women who take the birth control pill use it for reasons other than contraception – such as treatment for ovarian cysts, hormone replacement after chemotherapy, endometriosis and other medical conditions.
  • Birth control has led to profound economic benefits for women and their families, contributing significantly to reducing the wage gap between women and men.

Birth control is expensive.  Co-pays for birth control pills can run to $600 per year, a significant cost for low-income families.  That can lead women to use birth control inconsistently or not at all.

Religious organizations already are exempt

Religious organizations already are exempt from the contraception mandate, and that exemption is not in question in the cases before the Supreme Court.  Rather, these cases concern owners of for-profit corporations who are seeking to impose their personal religious preferences on their employees.  But, as the National Women’s Law Center (NWLC) explains, “The law distinguishes between a corporation and its owners.”

The point of establishing a corporation is to create this very distinction – so that an owner is not personally liable for actions of the company.  If a company goes bankrupt, for example, creditors can’t take away the owner’s home.  Hobby Lobby and Conestoga are arguing that they want to keep this distinction between person and corporation when it suits them and then pretend it doesn’t exist when they want to impose their religious views on their employees.

Even if corporations were people, the contraception requirement is not a “substantial burden.”

notmybossbusinessThe ACA requirement does not encourage the use of birth control; it simply covers the health needs of women on an equal basis to those of men, and covers birth control no differently from other preventive health care.  As NWLC points out:

“A boss’s religious beliefs do not give him or her the right to determine how workers can use their health insurance, just as a boss’s religious beliefs do not give him or her the right to require workers to spend their paychecks in particular ways.”

In contrast, the enormous benefits of birth control for women’s and children’s health, and women’s equality constitute a compelling government interest.

Whose freedom really is compromised?

One need only look at the amicus briefs filed by supporters of Hobby Lobby and Conestoga Wood Specialties to see who seeks to infringe on freedom.

One brief says that the contraceptive mandate

“does not purport to protect women from discrimination based on their being women or based on their being pregnant. What it purports to do is to provide women a cost free way to avoid exercising an aspect of their womanhood — their unique capacity to bear children.”

Another brief complains that the contraceptive mandate

 “encourages amoral recreational sex without reproductive consequences…” 

As Emily Bazelon writes in Slate:

Make no mistake: If Hobby Lobby wins, the fundamentalist views … win, too. Here’s the cherished ideal that will have its moment of ascendance: Women should welcome pregnancy at any time. Because if that blessing comes, it was divinely intended, and any other goal, at any moment, must yield. … [A]ccording to the segment of the religious right that signed on to these briefs, there is only one way for true women to wield power: by giving it up to become God’s (and their husband’s) handmaidens.

It won’t necessarily stop with contraception …

Some people are opposed to vaccinations on religious grounds.  Some oppose blood transfusions.  Some oppose almost all medical intervention.  If the Supreme Court rules in favor of Hobby Lobby what is to stop owners of corporations who claim to hold such views from denying coverage for these procedures as well?

…or even with health care

What if an employer decides that, because of his religious beliefs, he will offer health insurance only to “heads of households” – which he defines as single people and married men – not married women?  What if an institution believed that racial integration contravened its religious beliefs – or paying the minimum wage, or providing equal pay for equal work?

These are not hypotheticals.  As NWLC points out, they’re all real cases.  Fortunately, the employers lost.  But that could change if Hobby Lobby and Conestoga win at the Supreme Court.

One need only look at the law passed this year by the Arizona Legislature, but vetoed by the governor, which explicitly legalized discrimination on religious grounds to see where this could lead.

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