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
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
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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