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FEATURE | Fall 2014

The 88 Percent

The Supreme Court’s Hobby Lobby decision threatens all contraception


WHEN THE U.S. SUPREME COURT RULED 5-4 THIS PAST SUMMER IN THE CASE OF BURWELL v. Hobby Lobby Stores, Inc., the court’s majority tried to cast it as a decision about “religious freedom.” That’s because it allowed closely held corporations with religious objections to certain types of birth control to escape the mandate of the Affordable Care Act to provide contraceptive coverage to its employees.

Commentators widely condemned the “breathtakingly broad” scope of the 5-4 opinion in Hobby Lobby, and many bemoaned the court’s further personification of corporations as having religious faith. But a closer look at Hobby Lobby reveals a far broader and deeper threat to women’s reproductive health than most realize. Perhaps that is because the court’s majority virtually erased women from the pages of its opinion, even though it was about our lives.

Any study of U.S. reproductive-health law should begin with the case of Griswold v. Connecticut. Written almost 50 years ago, Griswold held that the constitutional right to privacy includes the right of married couples to make personal decisions about using contraceptives. It ushered in a new era of women’s control over their bodies and transformed women’s ability to participate more equally in nondomestic spheres.

Since Griswold, the right to contraception has served as the foundation for the court’s treatment of women’s reproductive health. It laid the legal groundwork for a broad range of sexual and reproductive freedoms, including the right to abortion, the decriminalization of same-sex intimacy and, most recently, the right to same-sex marriage. Yet a majority of the court in Hobby Lobby displayed an utter disregard for Griswold and women’s access to contraception.

The Hobby Lobby majority barely discussed the right to contraception. Tasked with balancing the right of a corporation’s free exercise of religion under the 1993 Religious Freedom Restoration Act against the government’s interests in providing contraceptive coverage, the majority did little balancing at all. Instead, the majority explained in great detail the role of religion in the corporations that filed suit.

Tellingly, the majority referenced the right to privacy just once—and that concerned the privacy rights of corporations. The majority so cleverly framed the issue as exclusively about religious freedom that it was easy to miss any other part of the equation. Hobby Lobby might as well have been a decision about a corporation’s religious objections to toenail clipping.

Perhaps the most glaring example of the opinion’s indifference to women’s reproductive interests came as the majority considered whether the government had a “compelling interest” in mandating contraceptive coverage. Almost as an aside, the majority declared the government’s justifications for the mandate—including public health and gender equality—to be too “broad” and “unfocused.” But how are public health and gender equality any broader than the “sincerely held religious beliefs” that carried the day? Without deciding the issue of compelling interest, the majority grudgingly assumed the government’s interests were sufficient— but then they ruled in favor of Hobby Lobby on other grounds.

To be clear: A majority of the U.S. Supreme Court refused to make a definitive decision on whether or not the government has compelling reasons for ensuring women’s access to contraception. Even Justice Anthony Kennedy was disturbed by this and wrote separately to clarify, among other things, that the contraceptive mandate furthers “a legitimate and compelling interest in the health of female employees.”

The majority went to great lengths to inform readers that the opinion should be read narrowly as applying to the “very specific” facts of the case. The court assured readers that they need not worry about collateral damage to public-health laws, other medical procedures and drugs, and antidiscrimination laws. The court essentially gave a free pass for religious discrimination only when it comes to women and their reproductive health.

That the court thought it palatable to relegate women’s contraceptive access to a special-interest category rather than a basic health-care necessity is offensive. That it offered its twisted reading of the Religious Freedom Restoration Act as more plausible than the alternative—that religious freedom ends where women’s constitutional rights begin—is astonishing.

The court claimed that the decision applies to only four types of contraception viewed—inaccurately—as tantamount to abortion. Yet nothing in the opinion appears to prevent a corporation from objecting to all forms of contraception. Equally disingenuous was the court’s promise that religious exemptions extend only to “closely held” corporations like Hobby Lobby, since roughly 90 percent of U.S. corporations are closely held.

Indeed, less than a week after the Hobby Lobby decision, the court expanded its attack on the contraceptive mandate in the case of Wheaton College v. Burwell, temporarily blocking the government from enforcing the mandate against a religious college (not a closely held corporation). The emergency order seems to extend to all forms of contraception, not just the four most “objectionable.”

Wheaton already qualified for an accommodation under the contraceptive mandate; the college merely needed to notify the third-party administrator of its health plan about its religious objection, and the administrator would be required to directly arrange coverage. But even that was too great an imposition on religion for the court. As a result, many women insured through religiously affiliated nonprofits (hospitals, colleges, charities and more) likely will miss out on contraceptive coverage unless the Obama administration acts.

The majority opinion in Hobby Lobby is startlingly broad, as Justice Ruth Bader Ginsburg wrote in her scathing dissent. It has the potential to neuter important federal and state laws, and propels corporations further into the realm of personhood. And the mandate will probably land again in the court’s lap, with the majority already having demonstrated its willingness to color outside the lines it drew in Hobby Lobby.

We already knew that a majority of the court is decidedly anti-abortion, but in Hobby Lobby and Wheaton we have had a terrifying glimpse into the majority’s hostility toward an even more foundational aspect of women’s reproductive health—the right to contraception. More than 88 percent of women ages 15 to 44 who have had sexual intercourse have used a highly effective, reversible method of birth control—the pill, patch, IUD or injectables. Hobby Lobby should be of grave concern to that 88 percent.

Congress has the power to fix the law that the court’s majority in Hobby Lobby distorted, and we should insist that it does so.

Reprinted from the Fall issue of Ms. To have this issue delivered straight to your door, Apple, or Android device, join the Ms. Community.

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