The US Supreme Court agreed on November 26 to hear arguments involving the “religious freedom” of businesses concerning coverage of certain forms of contraception under the Affordable Care Act (ACA), according to Robert Barnes at the Washington Post.
Hobby Lobby, a retail arts-and-crafts chain based in Oklahoma City that has 500 stores and employs over 13,000 people, is run according to Biblical principles, according to founder-owner David Green. Conestoga Wood Specialties, a Pennsylvania cabinetry company that employs some 950 people, is owned by a Mennonite family. Both businesses refused to cover certain forms of contraceptive care, which is one of the benefits mandated by the ACA. Fines are to be levied from businesses that refuse to comply with the act.
In the two cases, federal circuit courts went different ways, in divided opinions. “The full U.S. Court of Appeals for the 10th Circuit in Denver said forcing the company to comply with the contraceptive mandate would violate the Religious Freedom Restoration Act, a 1993 law providing special protections for religious expression,” said Barnes in the WaPo. It also relied on (and this is what is giving me the willies) the Supreme Court’s decision in Citizens United v. Federal Election Commission, which said that corporations have the same right to political expression as individuals. WaPo again: “‘We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” Judge Timothy Tymkovich wrote for the majority.”
Meanwhile, the 3rd Circuit Court of Appeals in Philadelphia went the other way and said that Conestoga must comply with the mandate. It noted the decision of the 10th Circuit but also noted the absence of case law regarding the issue. “Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation — apart from its owners — can exercise religion,” wrote Circuit Court Judge Robert E. Cowen. Funny, I was thinking that too.
At issue for both businesses are forms of contraception that prevent fertilized eggs from implanting in the uterus, which includes the emergency contraceptives Plan B and Ella, while Hobby Lobby also objects to the intrauterine device (IUD). The business have raised no objections to other forms of contraception, but consider the above devices to be “abortifacients”. A brief filed by the American College of Obstetricians and Gynecologists disputed this assertion, citing that “abortifacient” has a precise meaning and does not mean something that prevents fertilization or prevents implantation of a fertilized egg. A counterbrief filed by a group of anti-abortion OB-GYNs and the Catholic Medical Association called this a “non-response”, saying that “Such drugs might not end a ‘pregnancy’ . . . but it does end the life of a unique human being.”
I detect the hint of a bait-and-switch in that last comment, but let’s go back to the idea that Hobby Lobby and Conestoga’s management are in some way morally culpable for what their employees do with their compensation packages, particularly when what they are doing is accessing services that are legal, peer-reviewed by the profession, and approved by a government regulatory body whose job is to review the safety and effectiveness of a drug or medical procedure. Unless I’m mistaken, people get health-care services, which are paid for by the insurance provider, using funds supplied from premiums that are deducted from the patient’s wage or salary. The same premiums that might pay for contraception might also go to setting a broken arm, stitching a cut, or chemotherapy. If a business-owner is justified in withholding his employees’ premiums on the off-chance that it may go to contraception, he is also justified in withholding part of their cash compensation if he suspects that it may go to the purchase of a twelve-pack of beer and a sexy magazine every week. More to the point, as many have already mentioned, it also opens the door to employers’ possible conscientious objections to vaccinations or blood transfusions, to name just two.
According to the Guttmacher Institute, two-thirds of sexually-active women who use contraception correctly and consistently account for five percent of unintended pregnancies, while the remaining third who use contraception inconsistently or not at all account for the remaining ninety-five percent of unintended pregnancies. Also the rate of unintended pregnancies is five times higher among low income women compared to higher income women. The IUD, which Hobby Lobby object to as an “abortifacient”, is one of the most effective and, in the long run, cost-effective, methods of contraception available, but it does have substantial initial costs which often put it out of the reach of low-income women. The birth-control pill is another highly effective method, but it can cost upwards of sixty dollars a month: that’s just for the pills, not the doctor visits and other associated costs.
The whole point of health-care reform was not only to make health-care affordable and accessible but also to remove arbitrary obstacles from patient choice and the relationship between physician and patient. And the whole point of the contraceptive-care mandate is that it’s preventative care, designed to avoid worse problems down the road; not just unintended pregnancy and its effects on education, employment, relationships and families, but also all the physical complications that can arise from pregnancy, complications that have the potential to affect a woman’s life-long heath or even to end her life. These aren’t, or shouldn’t be, partisan issues. What the practical effect of Hobby Lobby being supported by the Supremes would be is that while we’ve been trying to eliminate the insurance industry as a middle-man in decisions regarding such things as pre-existing conditions, we seem poised to insert the employer in the insurance industry’s place with regard to sexual and reproductive health. It doesn’t matter that the owners of Hobby Lobby do allow coverage for such methods as sterilization and condoms, since the point is patient choice. Make no mistake, if the court finds for the employer, there will be unintended pregnancies, and therefore abortions, that could have been avoided if certain employers didn’t make the arrogant claim that they are equal partners in their employees’ family-planning decisions. And it preserves the unequal playing field that health-care reform was intended to remedy. Access to comprehensive contraceptive care would depend on who you work for, based on their religious opinions.
An opinion that is misinformed or uninformed to begin with gains no validity if it’s called a “religious conviction”, nor should it expect any more respect than any other opinion.
The court is expected to deliver its rulings in March.