The Hobby Lobby birth control case decided at the Supreme Court today hinges on a debate over freedom of religion. Five out of nine Supreme Court justices (all male) say that the religious beliefs of people who run companies trump the rights of workers to access reproductive healthcare. The rest of the Supreme Court justices—including all three women on the court—agree that freedom of religion shouldn’t impinge on employees’ access to contraception.
Since the passage of the Affordable Healthcare Act, the CEOs of Hobby Lobby and other companies run by religious evangelists have been advocating to exempt themselves from the portion that requires them to cover employees’ birth control.The ruling says that requiring “closely held” companies to cover birth control options violates the Religious Freedom Restoration Act of 1993. Since the CEOs sincerely believe that life begins at conception and that it “violates their religion to facilitate access to contraceptive drugs or devices that operate after that point,” they cannot be compelled to provide insurance coverage for birth control. In addition to the companies that filed the suit, numerous other “closely held” companies run by evangelical Christians are also likely to cut off birth control coverage after today’s ruling. It seems important to point out that their objections are based on bunk science—throughout the case, they referred to several birth control options as “abortifacients” and outlets like the Wall Street Journal used the term, too. These forms of contraception don’t cause abortions. But that fact seems beside the point, since this case clearly isn’t about science. Based on today’s ruling, the CEOs of these companies could, conceivably, “sincerely believe” that using birth control will turn women into Pokemon and their beliefs would be protected.
Refusing to cover birth control for your employees is NOT protected under our First Amendment right to freedom of religion, says Justice Ruth Bader Ginsburg in her epic dissent on this ruling. The right to exercise your religion is protected in the United States up to the point where it impinges on someone else’s freedom—or, as Ginsburg quotes in her opinion: “Your right to swing your arms ends just where the other man’s nose begins.” In this case, Hobby Lobby’s CEO is flinging his religious beliefs into the faces of 16,000 employees.
Ginsburg points out that this ruling values the religious beliefs of the people at the top of a corporation “no matter the impact” that enforcing those beliefs will have on other citizens—in this case, the thousands of women who rely on Hobby Lobby for a job. This is a “radical” interpretation of the law, says Ginsburg. It’s especially troubling given that the people at the top of companies are not representative of most Americans: 92 percent of Fortune 100 CEOs are men and 94 percent are white. As attorney Andrew Daar wrote last winter on this issue:
A decision in favor of corporate free exercise would have far-reaching consequences. Will the notoriously homophobic Chick-Fil-A be able to request an exemption because Employement Non-Discrimination Act infringes its free exercise right? Could a corporation come forward and argue that its owners are religiously opposed to Title IX? Or, to turn the tables a bit, could a for-profit corporation owned by Buddhists or Quakers request that their corporate taxes not be allocated to fund the military, as Buddhism and Quakerism mandate pacifism?
It seems like the five justices who issued this ruling think that not covering birth control options for employees is not such a “radical” deviation from American law. The ruling is supposed to be narrow—only applying to contraceptives and not other healthcare practices that could run afoul of religion. But access to birth control should be considered a crucial right for women. In her dissent, Ginsburg quotes the decision in a landmark 1992 case involving Planned Parenthood: “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”
Congress understood that concept when they passed Obamacare. The small part of the Affordable Care Act that required covering birth control and reproductive health screenings is a huge step forward for women—Planned Parenthood President Cecile Richards called it the “big story” of Obamacare that didn’t grab headlines because it’s “steady, historic progress for women” rather than a splashy change. But the impact of mandating insurance coverage for birth control options is real: more than half of women say they have struggled with the cost of birth control. The expansion of preventive care options opened up contraceptive access and a range of reproductive healthcare options to 27 million women. Justice Ginsburg notes in her dissent that the financial burden of contraception and reproductive health typically falls unfairly on women, quoting the stat that women of childbearing age spend 68 percent more in out-of-pocket for health care costs than men.
In her dissent, Ginsburg lays out how this new ruling contradicts older case law. The court decided that accommodating someone’s religious beliefs should not hinder any “third party” in a 1990 case filed by two Oregon Native Americans who had been fired from their jobs for using peyote as part of a religious ceremony. In that case, Department of Human Services of Oregon vs. Smith, the court issued essentially the opposite ruling as it did in this case: the employees’ religious practices “significantly impinged” on the interests of their employer, so they weren’t protected under the First Amendment. In this case, it the Bible-beating beliefs of Hobby Lobby’s CEO are clearly impinging on the bodies of its employees.
But it seems like the Supreme Court is happy to protect freedom of religion—as long as its the religion of the people at the top of society.
Related Reading: Your Boss Shouldn’t Be the Boss of Your Birth Control.
Sarah Mirk is Bitch’s online editor. Her new hobby will be lobbying for conservative Supreme Court justices to retire.