Birth Control Bungle: The Supreme Court’s Appalling Ruling on Access to Contraceptives

The U.S. Supreme Court’s June 30 joint decision in Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Burwell is yet another disaster for separation of church and state. The ruling followed a May 5 opinion by the high court permitting municipal governments to open their meetings with prayers—even if most of those prayers are Christian. Those two decisions give Chief Justice John Roberts the dubious distinction of presiding over the worst term for church-state separation in recent memory.

Supreme Court opinions can be complex. The ruling in Hobby Lobby ran eighty-nine pages (including the powerful dissent by Justice Ruth Bader Ginsburg). A first read can sometimes be deceptive. It takes time to gauge the scope and effect of a high court ruling.

Thus, some people can be forgiven for initially assuming that the decision was fairly narrow and that the question of contraceptive access would be easily remedied. In the majority opinion, the justices seemed to imply as much.

But it’s important to look below the surface. When we do that in Hobby Lobby, we can see that this is far from a narrow ruling; in fact, it’s one that has the potential to generate much mischief in the years to come.

The owners of Hobby Lobby (a chain of craft stores headquartered in Oklahoma) and Conestoga Wood Specialties (a building supply firm based in Pennsylvania) don’t oppose all forms of birth control on religious grounds. They oppose four devices and medications that they believe cause abortions.

As a matter of fact, the medications and devices in question don’t cause abortion. But the owners of the two firms, in their scientific confusion, genuinely believe that they do, and to the Supreme Court that’s all that matters. It is a sincerely held religious belief.

Nevertheless, a quick read of the opinion led some people to conclude that the Supreme Court had merely allowed the owners of certain corporations to opt out of providing these four forms of birth control.

Not so. The day after the Hobby Lobby opinion was issued, the court ordered several lower courts to reconsider rulings that had gone against firms owned by Roman Catholics who don’t want to cover any forms of birth control, even pills. So let’s be clear: under Hobby Lobby, your boss can remove any and all forms of birth control from the company healthcare plan if they offend his religion.

Some analysts claimed that there was an easy fix to the ruling: religious nonprofits (hospitals, schools, and social service agencies) had been told that all they had to do was certify that they don’t wish to cover birth control, and the task would be shifted to a third-party provider. In the lead opinion, Justice Samuel A. Alito strongly implied that this accommodation could be extended to corporations as well. What Alito only barely mentioned is that many religious nonprofits are fighting this accommodation in court as well. They are arguing­—with a straight face and often successfully—that the mere act of them telling the government that they don’t want to provide birth control makes them complicit in an employee’s decision to use it.

Just days after the high court handed down its Hobby Lobby decision, it issued a short, unsigned order allowing Wheaton College, a nonprofit evangelical institution, to opt out of this accommodation—thus barring Wheaton College employees access to birth control not only through the school’s healthcare plan, but from third parties as well. Apparently, the very accommodation the court advocated just days earlier might not be such a great compromise after all.

It’s also unclear whether President Barack Obama can fix this matter through regulatory changes. It might require congressional action, an unlikely prospect in this polarized political climate. Even assuming Obama does have the power to act unilaterally, his order could be overturned by a future president, putting women back at square one.

Within days of the ruling, analysts were struggling to figure out just where it might lead. Will fundamentalist Christians who own businesses now have the right to deny services to LGBT people? What other medical services can a boss deny you if they offend his religion?

Those who argue that the ruling is narrow have derided some of this talk as a “slippery slope” argument. But the fact remains that the Supreme Court in Hobby Lobby opened a door that some will gladly run through. Some of their arguments may succeed and some may not, but more litigation is inevitable. The Supreme Court has handed the religious right’s legal arm a powerful new weapon in their fight for more exemptions from secular law. And you can be sure they’ll use it.

There is one tiny bright spot: The Hobby Lobby decision rests not on the First Amendment but on a federal law called the Religious Freedom Restoration Act (RFRA). Signed into law in 1993, RFRA was originally intended to protect religious minorities from government interference in their practices.

This is a statute. Statutes can be modified, changed, or overturned entirely. In fact, there are already calls to do just that. In July, U.S. Senators Patty Murray (D-WA) and Mark Udall (D-CO) introduced the Protect Women’s Health from Corporate Interference Act of 2014. The legislation would blunt the effect of the Hobby Lobby ruling, in part by making it illegal for an employer that provides a group healthcare plan to “deny coverage of a specific healthcare item or service” that is otherwise required under federal law. A companion bill was introduced in the U.S. House of Representatives.

Again, it would be very difficult to get a measure like this through Congress as it is currently constituted. The Senate in July failed to garner the sixty votes necessary to move the bill forward. But the introduction of the legislation may enhance the national dialogue already under way in the wake of the Hobby Lobby ruling. It may also serve to put the issue before voters in advance of the November elections.

There are other options, of course. Ending the tie between employment and healthcare seems a logical step, and it’s one that most industrialized democracies took a long time ago. A long-term goal, perhaps, but the Hobby Lobby ruling might reopen the discussion of universal healthcare.

For the time being, though, options are limited. Low-income women will likely take the first hit. And all of us will be left to wonder which laws religious conservatives will next decide they’d rather not follow.

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