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From the desk of ... Elizabeth Sepper, Repro Health Watch

What’s at Stake in the Supreme Court Birth Control Cases? More Than You Might Think.

By Elizabeth Sepper, Associate Professor of Law, Washington University School of Law

Elizabeth Sepper, Associate Professor of Law , Washington University School of Law

Access to contraception long seemed settled and remote from the culture wars. After all, 99 percent of American women use birth control during their lives. Twenty-eight states already require insurance to cover contraceptives. Yet, contraception has emerged as the most hotly contested legal issue of 2014. Next week, the Supreme Court will hear a challenge to the Affordable Care Act’s requirement that health insurance nationwide cover contraceptives. The challengers – Hobby Lobby, a craft store chain, and Conestoga, a cabinet manufacturer – are just two of the many for-profit, secular businesses to claim that contraceptive coverage violates corporate free exercise of religion under the Religious Freedom Restoration Act and the U.S. Constitution.

The right of women and men to control their reproductive lives – without their boss’ say-so – hangs in the balance. More than half of U.S. women between ages 18 and 34 cannot afford birth control. Poor health outcomes for mother and child result from unintended pregnancies. Requiring employee insurance to cover contraception is key because half of Americans are insured through their jobs. Before the ACA, many insurance plans did not cover the most effective contraceptives, such as IUDs. Women paid 68 percent more in out-of-pocket health costs than men, in part due to the costs of contraception and reproduction.

But the importance of the Hobby Lobby and Conestoga cases isn’t limited to contraception. For the businesses to prevail, the Court would first have to decide that corporations can exercise religion like human beings – a radical proposition. It would then have to conclude that contraceptive coverage is a burden on corporate religion that can’t be justified by the significant public health and gender equality benefits that birth control coverage brings.

If the Court sides with Hobby Lobby, employees will bear the costs of religious beliefs of corporations. Employees in all workplaces could lose the benefit of any insurance mandate. Corporations could resist covering counseling and testing for sexually transmitted infections. Unmarried women could be denied prenatal care. Employers could oppose covering the HPV vaccine based on the misguided belief that it causes promiscuity. Still others could refuse to include depression screening or kids’ vaccinations in employee insurance.

And that’s just where it begins. A win for Hobby Lobby could resurrect businesses’ attempts to exempt themselves from Social Security, minimum wage, worker’s compensation, antidiscrimination, health, and safety laws. Courts had long rejected such claims. Under the logic of Hobby Lobby, businesses might now prevail, at significant cost to their employees. Employees everywhere would have to worry that their companies might refuse to comply with laws that protect equality and create a safety net. Businesses could argue that religious belief entitles them to pay women less, fire pregnant women, or deny spousal benefits to same-sex couples. Consumers could face heightened discrimination as well. Pharmacies could refuse a patient HIV medication. Hospitals could bar a man from visiting his same-sex spouse. A hotel could disallow bookings by unmarried couples.

A win for Hobby Lobby would open the door for secular, for-profit companies to find religion and demand a veto over their employees’ private decisions. At heart the question for the Court is: Can a corporation have a “conscience” that trumps individual freedom and allows business owners to impose their beliefs on employees and consumers? In the past, the Court answered that question with a resounding 'no' – equality in the workplace and the marketplace rides on the Court doing so again.


Comments

Submitted by cat on March 26, 2014
BOYCOTT Hobby Lobby!!!
Submitted by rg on March 26, 2014
The owner has a right to his/her religious beliefs. However when he/she engages in business, he/she must treat everyone equally under the law. That includes customers, vendors, and employees. If he/she feels that doing business contradicts his/her beliefs, then they can shut down the business.
Submitted by gathaiga on March 26, 2014
The so-called Christian beliefs of the Hobby Lobby people are a sham. Don't know about other stores but the one near me has mostly goods from China...that country with an exemplary human rights record, who wouldn't think of bullying their neighbors...or killing their citizens.
Submitted by Reality on March 26, 2014
This isn't about asking someone else to pay for a woman's birth control. You're "employer provided" health plan is part of your compensation package. If you are a man working for hobby lobby and you want to put your (female) domestic partner on your health insurance plan (for states that recognize domestic partnerships for heterosexuals), you pay taxes on your (again female) partner's part of your family health plan. If paying taxes on your health plan doesn't prove it's part of your income, I don't know what would. Your compensation, your decision.
Submitted by Eral Felder on March 26, 2014
None of my family will ever use a Hobby Lobby store or product again. Hobby Lobby should be dismantled. Businesses are not religions nor are they churches nor do they have the right to determine what health rights employees have or do not have. This is truly disgusting and deeply disturbing. If Hobby Lobby gets away with this we will see religious bigots running the federal and state governments -- something that is already too close to reality.
Submitted by Marie on March 26, 2014
No company (except that the SCOTUS thinks they are people) has the right to tell anyone what to do about birth control. Are they going to include Viagra or Cialis?
Submitted by Annie on March 26, 2014
Hobby Lobby it's time to get out of bed with republicans! They would like nothing more than to find yet another way to put women under their thumbs! NO ONE HAS THE RIGHT TO DICTATE OVER ANY PART OF A WOMAN'S BODY/PRIVATE LIFE!!! Hobby Lobby it's time to BACK OFF!! Worry about your own families... Take care of your OWN business and stay OUT of MINE!!
Submitted by mooo on March 26, 2014
Your right to swing your fist in the air ends at my nose. Your right to tell me what to b/c I work for you, ends at my Obamacare.
Submitted by Lulu on March 26, 2014
Shame on these companies, they oppose birth control AND social programs for women ad children; so what are they to do? Commit suicide en mass?.
Submitted by Bob on March 26, 2014
I believe in Freedom of Religion. I ALSO BELIEVE IN FREEDOM FROM RELIGION. Bob Powers
Submitted by Dave on March 26, 2014
So, if I understand some of the commenters, as a shopper, I may have to check the religion of all mertchants - perhaos they should pst them on the door, so I know if the merchant is a Christian Scientist who doesn't pay for medical expenses, a Jehovah's Witness who will not cover blood transfusions, a right wing Roman Catholic (of whom a few are left) whop will not support birth control, or a fanatic Protestant like the Hobby Lobby folk. This is ridiculous!!! Where does it stop?
Submitted by Dennis Deloach on March 26, 2014
hobby lobby also helps hurricane victims... treats its employees very good so please get your fact straight before condemning this company
Submitted by Robert on March 26, 2014
I will never shop at Hobby Lobby. It is outrageous that a business owner, corporation, or religious group should dictate matters of personal choice and privacy.
Submitted by maggie on March 26, 2014
As I grew up everyone I knew said "business is business" meaning nothing personal. Hobby Lobby you lost my business.
Submitted by Barry on March 26, 2014
I will never go in Hobby Lobby again.
Submitted by Velvet on March 26, 2014
To bad I liked to shop at Hobby Lobby. No more. I will stop shopping at Hobby Lobby. Now!
Submitted by Unicorn on March 26, 2014
None has a right to make my decisions for me. This includes government, let alone any employer. I think the government/church or anyone else needs to clean up their own back yard before they start looking elsewhere!
Submitted by Joyce on March 26, 2014
All women should BAN Hobby Lobby!!
Submitted by Dr. Gerri on March 26, 2014
I will never use any Hobby Lobby products and I will boycott them and encourage all I know to boycott them as well. Let's start a boycott commitment website.
Submitted by Tom on March 26, 2014
I'll never shop hobby lobby!
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