In the wake of Monday’s Supreme Court Hobby Lobby decision, critics — me included — have warned that Hobby Lobby’s claim is a slippery slope. If religious employers can opt out of providing birth control coverage based on the Religious Freedom Restoration Act (RFRA), what will stop denials of other health care benefits on religious grounds? What about blood transfusions, vaccinations and psychiatric benefits? Beyond health care, can corporate heads simply refuse to abide by laws prohibiting discrimination based on race or sexual orientation if the laws counter their religious convictions?
These concerns, while valid, obfuscate one startling fact: that the very claims of narrowness in the decision serve to marginalize women’s health. Forget the slippery slope, in terms of women’s equality, this decision takes us off a cliff.
Not surprisingly, the ruling speaks directly to the issue of breadth. Justice Samuel Alito, writing for the majority, explicitly states “our decision in these cases is concerned solely with the contraceptive mandate.” He continues that not only should the ruling not apply to vaccinations, but that it also did not threaten compliance with taxation and racial discrimination law. Justice Ruth Ginsburg forcefully disagreed, arguing in an already oft quoted dissent that the decision’s “startling breadth” evidenced a court that had “ventured into a minefield.”
While a narrow reading of the ruling might seem comforting, these very qualifications send a troubling message that women’s reproductive health can be set apart as an acceptable target for religious objections. This distinction is particularly disturbing considering the extent to which women rely on contraception as a basic part of their health care.
In a recent paper on state contraceptive mandates published in the Journal of Health Politics, Policy and Law, Amanda Hollis-Brusky and I wrote that deciding when or whether to conceive is essential to women’s agency, equality and personhood. Ginsburg argues as much in her dissent, quoting Planned Parenthood of Southeastern Pa. v. Casey, “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.”
Women’s overall health and their reproductive health are so linked that many women see their OBGYN as their primary doctor. Over 60 million women in the United States are between 15 and 44, the range generally considered to constitute “reproductive age.” Nearly two-thirds of these women use some form of birth control. Women typically (though not universally) spend the majority of their fertile years trying not to get pregnant. There is extensive evidence that unplanned pregnancies pose serious, sometimes life threatening, risks to women’s health and economic security. Paying for contraception can pose a significant burden, particularly for low income women.
Women have long been second-class citizens when it comes to health care, often explicitly because of their reproductive capabilities. Research on treatments frequently excludes women because male biology is considered the norm and women’s bodies introduce “complications.” Until prohibited by the Affordable Care Act (the same law that required contraceptive coverage as part of preventative care), gender rating, the practice of charging women higher premiums because, among other things, the chance that they might get pregnant constituted a “preexisting condition” was commonplace and legal.
Alito argues that “corporations ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything.” Fair enough, but neither can women function as fully autonomous human beings “separate and apart from” the ability to control their reproductive health.
The battle over birth control access is hardly over. Yet, even if inequities can be mitigated, the message of this ruling remains clear: birth control, and by extension women’s health, is seen by the majority of the members in the highest court in the land as marginal, easily detached from health plans as a whole, and subject to refusal based on religious tenets.
While it is appropriate to consider the unintended consequences of this ruling for corporate personhood, for health care provision, we should not lose sight of the considerable damage done by the intended consequences. As Ginsburg is well aware, the problem isn’t just entering the minefield — the problem is also the mine that was already detonated.
Rachel VanSickle-Ward is an Associate Professor of Political Studies at Pitzer Colllege, where she teaches and conducts research on gender, policy and law. She was named the 2012 Scholar in Residence for her research on contraception politics and policy, and is currently working on a book on the subject with Kevin Wallsten.