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.
Sometimes birth control pills are prescribed for a limited time and then abruptly halted in order to boost fertility (for patients who are having trouble conceiving). At other times they are prescribed to minimize the pain and discomfort associate with endometriosis. Faith-based medicine has no place in secular healthcare, civic life, or our courts. The men of the Supreme Court should be ashamed of themselves.
Notice that there aren’t any men attempting to explain how women work or why the Supremes are wrong again. A decision that involves the majority of people in our nation shouldn’t be arrived at without consulting the experts, AKA-the women of America.
The conservative Supremes had the perfect test panel right in front of them with the likes of Ginsburg that is dead on about the effects and consequences.
Have no doubts that these pro-corporate, anti-Obama, anti-woman’s rights judges knew exactly what they were doing and have no second thoughts about their supposed reasoning. They nicked at Obamacare, chopped at women’s rights and bolstered big businesses already huge advantage. There is no mask or veil, this is blatant and the instant reactions to it are as predictable as the gutting of the VRA was.
Not considering the repercussions or not giving a flying fig makes the decisions of this court preposterous.
The Republicans are talking about impeaching the President, without the slightest justification. But, Supreme Court Justices are just as vulnerable to impeachment as Presidents, and no one is talking about the very justifiable impeachment of the majority of the Supreme Court. I cannot imagine why this is. Justice Thomas has long proven that he is utterly incompetent, and a tool of his right wing masters. Justice Alito is barely better. Justice Roberts has demonstrated zero ability to do his job. Justice Scalia appears to be senile. Yet, not one mention of impeaching a single one of them.
the gear-stripping of the conservative brain: simultaneously advocate freedom for men and oppression towards women.
Do I trust the judgment of the USSC? No. Particularly since the decision is based on a false premise. The majority opinion claims that based on the employer’s religious beliefs that birth control is immoral and that the ACA is enabling the immoral act of another. It states over and over that this is a valid religious position for employers to take which misses the point. Where the employer and employee have the same religious beliefs the employer is enabling nothing. Only where the employee’s religious beliefs conflict with the employees is there an issue and who is to say which religious belief is immoral. The reason that the USSC does not directly address the issue is that it is illegal under another law for employers to discriminate against employees based on the employee’s religious beliefs. It is also unconstitutional to have a law give preference to one religious belief as being superior over another religious belief. I do realize that often the one who claims superiority of their religion usually will argue that the others religious belief is not based on religion and thus the use of the term morality. If a person does not want to use birth control based on their religious belief, that is their right. But if another person does want to use it based on their religious beliefs, that is their right to do so also. It is a matter of personal freedom.