Today’s ruling in favor of Hobby Lobby and Conestoga Woods’ right to deny employees contraception coverage is a disaster both for women and religious minorities. Essentially the decision says that “closely-held” corporations – 90% of American businesses – can choose to exempt employees from contraception coverage, and only contraception coverage. The decision created an illogical barrier between women’s reproductive health care and other kinds of care, adding stigma to contraception and essentially reducing women to second class citizens.
As Ruth Bader Ginsburg writes in a blistering dissent, “the Court’s expansive notion of corporate personhood… invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith,” adding later that, ”working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door.”
Ultimately, there were several issues at play.
Whose religious freedom supersedes whose. Employers or their employees? A Jewish or atheist or Muslim woman who is allowed by her own faith and conscience to use hormonal contraception should be free to both do so, and be insured for it without being stopped by her employer who thinks, against scientific fact, that emergency contraception is abortion (it’s not). The uses of contraception are many, from simple birth control to severe pain management and more, and reasons a woman chooses to take the pill or another method should be private, not subject to interrogation by her employer.
Whether health insurance is salary. In America we include health insurance as a benefit that comes with salary, like vacation time and 401(k). This means the employer should be no more able to limit what health insurance covers than whether salary goes to kosher or non-kosher beef, whether a 401(k) is saved or squandered, or whether vacation is spent in Israel, Istanbul or Ibiza.
Whether contraception is health care. If you believe women and infants’ health matters, contraception is health care, not a lifestyle drug. The facts support it:
Contraceptive use decreases pregnancy-related illness, injury and death, especially for women who are near the end of their reproductive years and those who have medical conditions that may be exacerbated by pregnancy. Moreover, appropriate spacing of pregnancies is associated with improved birth outcomes, including reductions in the number of babies born premature, low-birth-weight or small for their gestational age. In addition, planned pregnancy is linked to earlier initiation of prenatal care and more prenatal visits, along with increased likelihood and longer duration of breast-feeding.
Whether the government should be actively promoting equality. In addition to improving health care, contraception has been a major enabler of women’s equality, allowing women to attend college, advance in the workplace, and, once settled and ready to reproduce, healthily space out pregnancies. And the more comprehensive contraceptive coverage is, the more women access it and use it properly, which means the Affordable Care Act provisions were making contraception more effective.
Whether allowing an exemption creates a slippery slope. Essentially because of misogyny, the decision by Justice Alito has made a point of segregating contraception as “other” than distinct religiously-frowned upon services such blood transfusions (opposed by Jehovah’s witnesses) to antidepressants (opposed by scientologists) to HIV treatment and STI screenings (possibly opposed by extreme practitioners of several religions). But Ginsburg believes that this is a “minefield” writing that “approving some religious claims while deeming others unworthy” could be seen as playing religious favorites. Given that all the judges who ruled for Hobby Lobby are male and Catholic, and Ginsburg is a member of the Tribe, her point is particularly salient.