On Tuesday, the U.S. Supreme Court is slated to hear 90 minutes of oral arguments in a case that will determine whether bosses who have religious objections to birth control can deny their female employees the contraceptive coverage to which they are entitled under federal law.
We’re not talking about bosses who are nuns. Or bosses who run parochial schools, or Catholic-affiliated hospitals, or other explicitly religious organizations.
We’re talking about bosses who own secular, for-profit businesses -- crafts stores, in the case of Hobby Lobby, and kitchen cabinet makers, in the case of Conestoga Woods. If the Supreme Court agrees with these bosses, good luck to anyone who works for an employer who objects to “the gay lifestyle” or childhood immunizations on religious grounds.
“Where will this end?” said Ilyse Hogue, president of NARAL Pro-Choice America, during a conference call Thursday with reporters that included representatives from Planned Parenthood, the ACLU and the National Women's Law Center. “What could be next? Could our bosses decide on religious grounds they don’t want to offer vaccinations? Or HIV medications?”
The Supreme Court has never held that a corporation can express religious beliefs, said Marcia Greenberger, co-president of the National Women's Law Center. “And it has never held that religious exercise provides a license to harm others, or violate the rights of third parties.”
Lyle Denniston of Scotusblog, has a terrific synopsis of the case here. “At the level of their greatest potential,” he writes, the cases “raise the profound cultural question of whether a private, profit-making business organized as a corporation can ‘exercise’ religion, and if it can, how far that is protected from government interference.”
In fact, the courts have held again and again that even the most sincerely held religious beliefs cannot be invoked to illegally discriminate against people.
Companies cannot refuse to provide service to African Americans, for example, because of religious views against racial integration, said ACLU deputy legal director Louise Melling, who oversees the group’s work on cases involving religious freedom, women’s rights and reproductive rights (and who sees no clash between those rights and the contraceptive mandate). Universities cannot refuse to racially integrate because of religious views.
Courts, she said, have also prevented schools from providing greater benefits to men than women because of religious views. And they have ruled against an employer who refused to provide health coverage to single mothers because he had a religious belief that women cannot be heads of household.
“Religious freedom is one of our most fundamental values,” said Melling. “It gives us all the right to hold our beliefs, but it doesn’t give you the right to impose your beliefs on others, to discriminate against others. Hobby Lobby is doing just that: If they don’t provide contraception coverage consistent with the law … it’s a way of using religion to discriminate.”
Even if the court finds that corporations can hold religious beliefs, Greenberger said, those beliefs can be overridden by a “compelling government interest,” which, in this case, is the advancement of women’s health and equality. In 1992’s Planned Parenthood vs. Casey ruling upholding Roe vs. Wade, the Supreme Court said, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Seems pretty compelling to me.
“We have had enough of this idea that our reproductive health is somehow separate from our economic security,” said Hogue. A $30 or $40 per month birth control tab for a woman earning minimum wage, or close to it, is not an inconsequential amount.
Anyone who takes the long view can see that the Hobby Lobby and Conestoga cases, while masquerading as religious freedom cases, are part of a much larger struggle, against Obamacare in particular, and women’s autonomy in general.
As for Obamacare, even as Republicans vow to repeal it if they gain control of the U.S. Senate, it’s clear that the president’s signature healthcare law is winning. Experts predict that when the enrollment period ends on March 31, more than 6 million people will have signed up for health coverage on the state and federal exchanges, exceeding the government’s revised estimate. (Originally the feds had predicted 7 million signups, but downgraded by a million after the disastrous website rollout.)
More important, it's starting to look as if enough younger adults will sign up, making the system actuarially sound. (Perhaps they are being persuaded by stories like this one on the website Nerdwallet, which explains how young women will receive more in health benefits than they will pay in premiums under Obamacare.)
As for women's autonomy, the struggle is constant. “In the past few years, we have faced an all-out assault on birth control by politicians and special interest groups--and now bosses…as part of a much broader campaign to limit women’s access to health care and limit women’s rights,” said Planned Parenthood president Cecille Richards.
If you think she is exaggerating, check out this post at the blog Feministing, which rounded up some of the more outrageous conservative arguments in friend-of-the-court briefs filed by groups that support Hobby Lobby and Conestoga Woods.
It’s hard to read them without laughing: “Birth control lowers society’s ‘moral standards’ and turns women into men’s ‘instruments,’” claims one brief. Another suggests that “By removing the fear of unintended pregnancy, birth control turns women into sluts.” (Feministing was paraphrasing there. The actual wording in a brief filed by a coalition of Christian evangelical and legal groups, was that Obamacare’s contraceptive mandate leads to “the maximization of sexual activity irrespective of marital commitment and unencumbered by the risk of pregnancy.”)
There’s another flaw in Hobby Lobby’s argument against having to provide birth control coverage on religious grounds.
The Green family, which owns the nationwide chain, say they do not oppose all forms of birth control, only those that prevent implantation of a fertilized egg.
But the consensus in the medical world--including the American College of Obstetricians and Gynecologists--is that pregnancy begins with implantation of a fertilized egg.
“Every major medical institution confirms that birth control prevents pregnancy from happening in the first place. It does not end pregnancy,” said Richards. “The fact that these CEOs wrongly believe that some birth control methods are a form of abortion is further support for the fact that we are all better off when we leave women’s decisions to the woman and her doctor, not her boss or politicians.”
Even if your religion teaches you that life begins at conception, do you really think a hobby store owner's take on the science of fertilization, conception and pregnancy should determine the kind of medical care his female employees should have?
[For the Record, 2:50 p.m. PDT March 21: Two quotes attributed in an earlier version of this post to Marcia Greenberger of the National Women's Law Center were said by Ilyse Hogue, president of NARAL Pro-Choice America: "We have had enough of this idea that our reproductive health is somehow separate from our economic security," and "Where will this end? What could be next? Could our bosses decide on religious grounds they don’t want to offer vaccinations? Or HIV medications?" In addition, Greenberger was incorrectly identified in earlier versions of the post as president of the National Women's Law Center. She is co-president.]