Last week, the Supreme Court heard arguments in two cases related to the provision of the Affordable Care Act that requires health insurance policies to include contraceptive care: Sebelius v. Hobby Lobby and Conestoga v. Sebelius. Both are instances in which the companies claimed that contributing to employer-sponsored plans that would provide those services to their employees violated the religious beliefs of company owners. Given the arguments that were presented, legal experts are beginning to note the profound impact and various ripple effects the decision might have.
A little background: two for-profit companies, Hobby Lobby and Conestoga Wood Specialties, a Pennsylvania cabinet manufacturer owned by a Mennonite family, both objected to the contraception mandate in the ACA. Hobby Lobby won their case, Conestoga lost. The Supreme Court will now settle the matter.
Both companies are privately owned by practicing Christians, but they are nonetheless corporations, raising the question (again) as to whether a corporation is a person and afforded the rights of citizens under the U.S. Constitution.
At issue is the Free Exercise Clause of the U.S. Constitution, along with provisions of the Religious Freedom Restoration Act of 1993, which reinstated the Sherbert Test, a four-prong test used to determine if a person's right to religious free exercise has been violated by the government.
The law was a response to a 1990 case, in which the United States Supreme Court ruled that a person may not defy “neutral laws of general applicability,” even as an expression of their religious beliefs. "To permit this," wrote Justice Scalia at the time, "would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Scalia argued that such such laws do not have to meet the standard of strict scrutiny, as that would create "a private right to ignore generally applicable laws."
As per the Sherbert Test, for the individual, the court must determine whether the person has a claim involving a “sincere religious belief,” and whether the government action is a substantial burden on the person’s ability to act on that belief. If these two prongs are met, then the government must prove that it is acting to promote a "compelling state interest," and that it has pursued that interest in the least restrictive or burdensome way possible.
What seems most frightening is the idea that the court should judge the “religious sincerity” of the company's owners, as if that should be the threshold to sorting out the spurious requests for exemptions from genuine ones (there are 71 more for-profit companies challenging the mandate). Of course Hobby Lobby's “sincerity” was called into serious question this week, when it was revealed that they are heavily invested in companies that produce not only birth control medications, but even medicines used in actual abortions, through investments for their company-sponsored 401k account (over $73 million worth, despite the existence of several boutique mutual funds that specifically screen companies to see whether they are consistent with their client's religious beliefs before investing).
It seems highly dubious that their beliefs would allow them to contribute to investments in these manufacturers on their employees' behalf, but not health plans that would allow them to make personal choices about family planning, especially when you consider that Hobby Lobby's health insurance did cover the procedures they are arguing against, until they dropped the plan in order to file the lawsuit against the ACA in 2012. This all leads me to suspect that this is more of a political battle than a moral or religious argument.
Hobby Lobby is also the largest financial supporter of the National Christian Charitable Foundation, which uses a billion dollar-plus endowment to fund PACs, including the Alliance Defending Freedom, a right-wing group that recently supported the controversial Arizona law that would have allowed business owners to openly discriminate against homosexuals, that passed the legislature before being vetoed.
During last week's oral arguments, Justice Sotomayor quoted United States v. Lee, which ruled that an employer cannot deprive employees of a statutory right because of the employer's religious beliefs. Sotomayor noted that instead of paying the burden of the $100 per-employee per-day fine for non-compliance, Hobby Lobby could have replaced its health care coverage with higher wages equivalent to that expense and a calibrated tax that the government would use to subsidize their employees' health care on the exchanges. This would show that the company isn't being forced to pay for such plans and perhaps demonstrating that the “least restrictive or burdensome manner” prong has been met. Justice Kennedy worried that it could be the religious rights of employees who do not agree with the religious beliefs of the employers, that would instead be in jeopardy.
As legal experts have already noted, a decision supporting the plaintiffs could have profound consequences. 15 states filed an amicus brief with the court, arguing that were the case decided in Hobby Lobby's favor, businesses could deny coverage for blood transfusions, stem cell treatments and even psychiatric care. It could also strengthen religious challenges to laws on vaccinations, minimum wage and Social Security.
What if businesses that didn't want to offer health insurance at all, said that they were Christian Scientists and sought exemptions on the basis that their religion teaches that illness is spiritual rather than physical and that therefore, health care of any sort is against the owner's religious beliefs? There is also the matter of civil rights implications and whether such a decision would open the door for controversial laws like the Arizona one I mentioned, or the nearly identical bill sitting on the Governor of Mississippi’s desk?
Though most of the debate has surrounded emergency contraceptive medications, or the so-called “morning after pill,” which right-to-life groups have been claiming is akin to abortion, the companies also object to the requirement that plans cover IUDs, which have been proven to be the most effective form of preventative birth control available. What's missing from the debate entirely – both in the legal arguments and most of the media coverage – is the fact that the emergency contraceptive pills at issue do not cause abortions, but merely prevent a pregnancy before it occurs, even though it's ingested after sexual activity.
The Mayo Clinic, the National Institutes of Health and the International Federation of Gynecology & Obstetrics all agree on this. Emergency contraceptives prevent ovulation, not implantation. Many people are confusing the term "the morning after pill" to mean, RU-486 (an oral abortion pill), which isn't considered a contraceptive and is not covered by the insurance requirements in the ACA. In fact, such drugs are specifically excluded from the contraceptive requirement. To be clear: the "morning after pill" and the "abortion pill" are very different things, that I think are being deliberately conflated.
This all leads me to believe that we're more likely dealing with an extension of the far right's obsession, not with overturning not Roe v. Wade, but Griswold v. Connecticut, the landmark case which established the right to access to contraception, which as the late anthropologist Margaret Mead may have put best, isn't really “birth control,” but rather “prevention of conception” – something that should be seen by anti-abortion activists as a blessing, since contraception has been proven far and away the most effective method to reduce the need for an abortion in the first place.
In the end, this is a provision intended to give all women – rich or poor – equal access to a wide variety of family planning tools – short of abortion. You can't really be both anti-abortion and anti-contraception and expect to have much success. You would also have a hard time being anti-food stamps and anti-welfare, as inadequate family planning is the largest determinant of a woman ending up in poverty. Access to contraception is good for society on a host of levels (compelling state interest) and doesn't have anything to do with the abortion issue, aside from being able to reduce the instances in which someone might decide they need one. I hope the court gets this right, but given their recent rulings, I'm not holding my breath.
Dennis Maley's column appears every Thursday and Sunday in The Bradenton Times. He can be reached at email@example.com. Click here to visit his column archive. Click here to go to his bio page. You can also follow Dennis on Facebook.
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