Jina Dhillon, immediate past-president of NCWU, and staff at NCWU member Ipas, generously provided us with the below post of last week’s Supreme Court (SCOTUS) decision in the Burwell v Hobby Lobby Store, Inc. case, in which 5 of the SCOTUS justices essentially said that what constitutes women’s health care and fair employee compensation is up for debate in ways that men’s health care is not. We at NCWU, and many of our members, were deeply disappointed in the outcome of this case. Read Jina’s analysis on the decision below, and then current NCWU President Tara Romano’s updates on what has happened since the decision came out on Monday, June 30 (hint: quite a bit).
The Supreme Court’s recent decision permitting certain employers to allow their religious beliefs to dictate the type of health coverage offered to their employees is a dangerous precedent and immediate threat to women’s health. Employers like Hobby Lobby and other closely-held corporations may refuse to include basic birth control coverage in the health plans they offer, if it is contrary to their sincerely held religious beliefs. The decision steps into a dangerous new territory in which certain for-profit corporations can exercise religious rights that directly impact, and harm, their employees.
The decision also opens the door to new questions about what else an employer might refuse to provide in the name of religion—such as blood transfusions and vaccines. In her dissenting opinion, Supreme Court Justice Ruth Bader Ginsburg characterized the decision as leaving the door open for for-profit entities to seek religion-based exemptions from other regulations that they deem offensive to their sincerely held faith (including paying the minimum wage!). It is a startling outrage that corporations—remember, these are legal entities, not actual persons—are now deemed eligible to exercise a right to religious freedom to the detriment of those working to sustain and grow that very corporation’s bottom line. Justice Ginsburg also points out the commonsensical notion that workers are often coming to an employer from diverse racial, ethnic, and religious backgrounds; therefore subjecting them to the religious faith and interpretations ascribed to by their employer is unjust and contrary to the true intent of religious freedom enshrined in our Constitution.
This is a decision related to the legal rights of corporations, but more importantly, this is a decision about who is able to control women’s lives. A woman’s ability to exercise economic, social, and political independence is inextricably linked to her ability to control and maintain autonomy of her reproductive health. If a woman can’t control if, when, and how many children she has, there is little else in her life that she can control. For many women, affordability is the key factor limiting their ability to choose the contraceptive method that is most appropriate. Justice Ginsburg again made the point in her dissent that the cost of an intra-uterine device (IUD), for long acting and reversible contraception, is nearly equivalent to a month’s full-time pay for workers who earn the minimum wage.
In general, women have historically seen higher rates and inadequate coverage when it comes to their private insurance coverage. Often lacking essential coverage for maternity and newborn care, as well as a wide range of birth control options meeting their needs, women are more likely to experience heavier financial burdens and unwanted pregnancy when their health coverage does not meet their needs.
The Affordable Care Act (ACA) takes important steps to correct these historic injustices. By requiring new health plans to cover certain preventive services for women at no additional cost, and by requiring that coverage to include all FDA-approved contraceptive drugs and devices, women were finally afforded the reproductive autonomy to make, and afford, the decisions that were best for their lives. From the day it was passed, lawsuits against the ACA were filed across the country. The lawsuits challenged all sorts of aspects of the landmark law, including the requirement to cover contraception at no cost. This provision related to contraceptive coverage alone has sparked more than 50 lawsuits in courts across the country, with the Hobby Lobby lawsuit being the first to reach the Supreme Court.
Contraception is critical preventive care for women’s health. Professional academies, associations, and countless scholars have overwhelming deemed contraception critical because it allows a woman to space her pregnancies, it permits women to take certain medications that may pose serious risks to maternal and fetal health to prevent those harms, and it allows women with certain medical conditions (like heart disease and diabetes) to control those conditions so they can carry healthy pregnancies to term when they are ready.
The federal requirement to provide coverage that includes basic birth control has never required the owners of a religious business to participate in, agree with, or encourage any form of contraceptive act; but non-religious businesses, no matter the personal opinion of managers or owners, were not exempt. Put simply, a woman’s decision whether and when to use contraception is her business, not her boss’s. She should have access to all the necessary information and counseling that she needs to make this decision, but by no means should the religion or faith of her employer dictate her choices, or lack thereof.
The controversial lawsuit has sparked much debate across the country, and the discourse is likely to grow in the coming weeks. The White House spokesperson has promised that the Administration will work with Congress to ensure that women employed by corporations that can refuse contraceptive coverage will still have access to the vital services they need. It remains to be seen how this will all play out, but for now, advocates and women everywhere are deeply disappointed with this major setback.
This should be a no-brainer, but unfortunately we are forced to say this out loud: women should be in control of their own lives. A woman shouldn’t be asking her boss what type of birth control will be best for her life—to avoid pregnancy, to minimize harm from other health conditions, to ensure future pregnancies are healthy, etc. Employers are almost always going to be ill-equipped to answer any and all of these questions—and if a woman wants help answering these questions from a religion, she can seek guidance from her own faith. To the Supreme Court and any employers out there celebrating this decision—women don’t need your help with these questions. We got this.
Jina Dhillon, immediate Past-President, NCWU
Updates since the June 30 decision:
As with just about any case that makes it to the SCOTUS, we will need time to sort out how this decision will play out in the day-to-day reality of Americans’ lives. All SCOTUS decisions have consequences, intended or not; and to those who want the furor around this case to go away by insisting that it “really isn’t that bad” or overreaching, or that it’s some sort of “narrow decision” that will only apply to very, very specific circumstances….this is not how such court decisions work. While the executive and legislative bodies of our government exist to craft laws, the judicial body exists to interpret those laws and set precedents that guide future laws. That really is their job – to interpret laws made by the legislative and executive branches in the context of state and national constitutions that guarantee citizen rights. And since all judges use past court decisions when arriving at current court decisions, it is disingenuous (at best) to suggest a certain court decision will never be used again in future decisions (the closest the SCOTUS has come to a direct assertion of “non-precedent” is in the Bush v Gore decision that decided the 2000 US presidential election; and even that assertion has been called “illegitimate”). It’s how courts in general, and the SCOTUS in particular, work.
In the case of the Hobby Lobby decision, however, we haven’t even had to wait that long to see some anticipated (by women’s rights advocates) consequences come to pass. The SCOTUS ruled in favor of Hobby Lobby, Inc’s right to refuse insurance coverage of 4 types of contraceptives they say provide abortions and therefore violate their religious beliefs (that those contraceptives cause abortions is not something medical professionals agree with) on Monday June 30. Women’s rights advocates who saw this as an infringement on the rights of women as workers to enjoy the same employment compensation, and right to comprehensive health care benefits, were immediately told to calm down, because it’s “just 4 types we’re talking about”. However, on Tuesday, July 01, the SCOTUS ordered lower courts to re-hear any court cases of employers objecting to covering all types of contraception. So, strike one.
Despite the insistence again and again that this ruling “only affects the ladies, and just those who insist on having promiscuous (heterosexual) sex lives” (paraphrase, of course; and insulting that this argument somehow makes the ruling okay), on Wednesday, July 02, a group of federal contractors sent a letter to the White House asking to be exempt from the recent executive order forbidding federal contractors from discriminating against LGBT employees in their hiring process in light of the Hobby Lobby decision. Per their letter: “Without a robust religious exemption, this expansion of hiring rights will come at an unreasonable cost to the common good, national unity, and religious freedom.” For expanding the Hobby Lobby decision beyond the original, “narrow intent”, strike two. And for making an opening for religious freedom to be defined solely by the religious organization asking for the exemption (what exactly are the “unreasonable costs to the common good” that will result from hiring LGBT employees?) without asking for any kind of proof of these assertions, strike three.
And if that isn’t enough strikes so soon after the decision – and a rebuke to the flippant SCOTUS majority and women’s rights opponents suggestion that the “federal government can find another way to ensure contraceptive access to women” – on Thursday, July 03, the SCOTUS issued a decision that even making a non-profit religious organization fill out the birth control exemption request form is an undue burden on religious freedom, and therefore, they shouldn’t have to do it. Which undoubtedly will make it a bit more difficult for the federal government to keep track of which women aren’t getting the coverage via their employers. Strike four.
That certainly was fast. And considering this case could be seen as a preliminary to the broader efforts of corporations to restrict the rights of all workers, we certainly have not seen the last of this “narrow decision” being invoked as precedent. And that may have been the intent of the decision in the first place, an opening of the door. But even if it wasn’t, the SCOTUS sets precedent – that’s its job. These subsequent decisions we’ve seen in the last week are not the result of “suggestions” made by Justice Ginsburg’s dissent. Frankly, those accusations are just more misogyny coming out of a misogynistic society that brought us to this decision in the first place.
And while we await more precedents, it’s worth noting the harm the Hobby Lobby decision does right now, which is restrict the access of poor women working at these companies to comprehensive reproductive health care that is a part of their compensation. It is not lost on us that this fight – which essentially is saying that your employer still has a right dictate what you do with the compensation they provide – is being fought on the backs of those with historically little political clout. While there may be religious objections to covering Viagra or vasectomies, they rarely seem to provoke the heated debate that contraception designed for women does; and they certainly don’t seem to invoke a movement to ban those things completely, they way some would with women’s birth control.
(A note on this decision and NC women’s access to employer-covered birth control: in 2000, the NCGA passed a law, well before the ACA, that “requires that insurers that provide plans that cover prescription drugs or devices also cover contraceptives”. That doesn’t appear like it will change merely based on this decision. Whether or not it gives the NCGA ideas, however, remains to be seen).
Tara Romano, President, NCWU