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SCOTUS Lets Women Down

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<p> Scott Olson/Getty</p>

This month, the highest court in the land decided two landmark cases regarding a woman’s access to health care.  Monday, the Supreme Court held that closely held corporations can refuse to cover contraception for their employees, based on religious grounds.  Hobby Lobby won the argument over whether a boss’ religious objections to certain forms of birth control is reason enough for them to refuse to cover it in their employee health care plans as required by Obamacare.

Late last week, in McCullen v. Coakley, the Supreme Court unanimously held against a Massachusetts law making it a crime to stand on a public street within 35 feet away from women’s health care clinics.  This “buffer zone” was meant to protect women, many of whom were entering clinic to receive reproductive health care other than abortions, and who had frequently been targeted by aggressive and sometimes dangerous anti-choice protestors.  With no protection against violence, women are now expected to walk through these combative crowds, as the Court has decided that their First Amendment rights trump the rights of women to make their own reproductive decisions.

At issue in Burwell v. Hobby Lobby was the so-called contraception mandate in Obamacare, which requires employers to cover contraception and preventative healthcare for women at no additional cost.  Even with insurance, many forms of contraception are expensive for women paying out of pocket.  The costs are even more prohibitive when women are paying completely out of pocket for birth control.

In the narrowly tailored 5-3 opinion, Justice Samuel Alito, the uber conservative justice appointed by George W. Bush, wrote for the majority that,  “Under [the Religious Freedom Restoration Act], a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways Congress or HHS could equally insure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, all FDA-approved contraceptives.”

Simply put, it is the first time in history, that the Supreme Court has ruled that corporations, in this case closely held ones, have religious liberty that trumps the rights of their individual employees.

A closely held corporation, by the IRS’ definition, is one that “has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and is not a personal service corporation.”

It’s important to point out though that while the Court’s majority opinion takes seriously the argument that certain forms of contraception induce abortions, this simply isn’t scientifically true.  Justice Alito writes “They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges . . . may result in the destruction of an embryo.”  Contraception prevents pregnancy, it doesn’t terminate pregnancy.

The ruling also doesn’t account for the myriad other reasons that women use birth control.  According to the Guttmacher Institute, 14% of birth control users, use the it for reasons other than preventing pregnancy, including irregular menstrual cycles, heavy cramping, and fibroids.

In a scathing dissent, liberal Justice Ruth Bader Ginsburg wrote, that the majority’s decision is a one of “startling breadth” with far and wide reaching implications.  “The exemption sought by Hobby Lobby [..] would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.”

Justice Ginsburg points out that closely held corporations, like Hobby Lobby, are not religious organizations that “exist to foster the interests of persons subscribing to the same religious faith.”  Essentially, saying that Hobby Lobby isn’t in the business of religion, it’s a store that sells supplies for arts and crafts, and therefore, “[w]orkers who sustain the operations of those corporations commonly are not drawn from one religious community.”

Women have a fundamental right to make decisions about their own bodies and ultimately is the person in consultation with her doctor, that decides if and how to use contraception.  An employee receiving health care coverage through an employee based plan is receiving that benefit for her labor and yet that the Court is held Monday, that this is something women have to pay for on their own, without help from an employer if their employer has a religious objection.

“This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs,” it says. “Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice,” Ginsburg wrote in her dissent.

The president of NARAL Prochoice America, Ilyse Hogue responded to the decision by saying, “Today’s decision from five male justices is a direct attack on women and our fundamental rights. This ruling goes out of its way to declare that discrimination against women isn’t discrimination.”

This decision matters because contraception is expensive.  As Justice Ginsburg rightly notes in her dissent, “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage…Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude….The court, I fear, has ventured into a minefield.”

The conservative Court’s decisions limiting women’s access to health care and allowing violent opponents free reign to harass them for their choices is another reminder that elections have consequences.  Any citizen who believes that a person’s health care choices should not be manipulated by her boss, should be reminded of this in November.

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