By Gretchen Borchelt 
Senior Counsel and Director of State Reproductive Health Policy, National Women’s Law Center  

Gretchen Borchelt

Gretchen Borchelt

The companies seeking to deny women access to a benefit guaranteed under the health care law—coverage of all FDA-approved methods of birth control and related education and counseling without cost-sharing—made some questionable claims yesterday before the Supreme Court. Two in particular are worth exploring, especially since they’ve gotten short shrift in the post-argument analysis.

The first troubling argument was that the government does not have as compelling an interest in requiring insurance coverage for birth control as compared to other health care services.  Paul Clement (the lawyer representing the companies) framed his opening by talking about how “religiously sensitive” it is to require birth control coverage.  Justices Sotomayor and Kagan questioned this notion, asking how far an exemption for companies with religious objections would go.  What about an owner who has religious objections to vaccinations or blood transfusions?  Are those “religiously sensitive”? Should a boss be able to deny employees coverage of those health care services because of a religious belief?  Clement responded that this case is “easier than” those cases because birth control is “so religiously sensitive, so fraught with religious controversy” and the government may have a “stronger compelling interest [in those cases] than it does” in this case.

Clement’s argument implies that the compelling interest test depends in part on the “religious sensitivity” of the item.  But that is not how the legal analysis works—“religiously sensitive” is not a legal standard and “controversy” is not factored into determining the government’s compelling interest.

The reality is that Clement can’t otherwise challenge the compelling interests met by providing insurance coverage of contraception because they are not in doubt.  We at the National Women’s Law Center submitted an entire brief on this topic, and here are the highlights: birth control furthers (1) the public health by preventing unintended pregnancy, and (2) women’s equality by remedying gender discrimination in health care and allowing women to control the course of their lives.

Why are those reasons less compelling than the promotion of public health through requiring coverage of other preventive services like vaccinations?  They aren’t.  That is why the Centers for Disease Control and Prevention (CDC) calls family planning one of the ten great public health achievements of the twentieth century, alongside vaccinations and control of infectious diseases.  That is why numerous health care professional associations and other organizations have recommended birth control as part of preventive care (and why they submitted amicus briefs in support of the government).  That is also why various state and federal laws and programs require coverage of contraception.  And that is why the experts at the Institute of Medicine included contraception among the list of women’s preventive services that plans had to cover under the health care law.  Just because a company owner thinks a required service is “religiously sensitive” or “controversial,” that doesn’t make it less compelling for the millions who benefit from it.

Another troubling moment came later in Clement’s argument when he said, “This is not about access to contraception” but rather about who pays for the benefit—the government, employers, or insurance companies.  Putting aside the outrageous claim that this case isn’t about access to contraception, there’s another troubling disconnect here.  What Clement overlooked is that it’s actually women workers who are paying for this benefit.  Health insurance is part of an employee’s compensation—women pay with their labor and through the premium they contribute for their health insurance.  A woman worker is entitled to all of the preventive services without cost-sharing, as guaranteed by the law.  She deserves to be able to meet her health care needs through her regular insurance plan, just as she accesses other health care benefits, and just as men are able to access the health care they need. This critical health care service—which 99% of women have used at one point in their lives—should not be carved out just because her employer objects to it.

These companies just don’t get it.  They are pushing the owners’ religious beliefs no matter the harm to their employees.

Justices Sotomayor, Ginsburg and Kagan

Justices Sotomayor, Ginsburg and Kagan

Luckily there was some indication in the Court yesterday that some Justices do get it.  Perhaps unsurprisingly, Justices Kagan, Sotomayor, and Ginsburg pointed out that there is a burden on the employees, and that must factor into the legal test.  And Justice Kennedy, widely acknowledged to be the swing vote, also asked about the employees themselves.  He recognized that “the employee may not agree with these religious beliefs of the employer.  Does the religious belief just trump?  Is that the way it works?”  Despite Clement’s attempt to propose novel legal theories to get out of answering that question, the law is clear:  the Supreme Court has never held that religious exercise provides a license to harm others or violate the rights of third parties.

In this case, we are talking about employers trumping the health of the women who are among the 14,000 employees of these two companies. These women would have a benefit taken away from them, making it more difficult—in some cases impossible—for them to use the most effective and most appropriate method of birth control for them.  This would heighten their risk of unintended pregnancy, cause them to bear costs the male employees do not, and threaten their future and their families’ stability.

To put it in the words of a Hobby Lobby employee who contacted us, “Birth control coverage should be important for everyone, not just women. . . . And without birth control I could have been pregnant a lot sooner than I would have liked. . . . I think it should be readily available for any woman that wants to take responsibility [for] her life.”

We were heartened by Justice Kennedy’s question and appreciate that the female Justices reminded the others that there are real women and their families at stake, and that harm to them is legally relevant in this case.

Gretchen Borchelt is senior counsel and director of state reproductive health policy at the National Womens Law Center  She was present for the oral arguments  in these cases.