When You Marginalize Women’s Health, You Sanction Inequality

by | Mar 28, 2014 | Blog Post

Cross-posted from the ACSblog.

This week, the U.S. Supreme Court heard oral argument in two cases brought by for-profit corporations challenging the Affordable Care Act’s (ACA) birth control benefit, which requires that health plans include coverage for contraception – a basic health service that 99 percent of women use at some point in their lives. Hobby Lobby, a national chain of arts and crafts stores, and Conestoga Wood Specialties, a furniture manufacturer, argue the ACA’s requirement that health plans cover contraception violates their religious liberty rights by forcing them to participate in a process that ends with women accessing and using birth control.

Hobby Lobby and Conestoga Wood Specialties are pursuing a radical proposition: that corporations have a right to impose religious beliefs on their employees by withholding benefits otherwise legally guaranteed to the women who work there. As others have noted, a win for the companies in these cases could open the door to all sorts of claims that corporations can opt out of laws that have helped shape our society and matter deeply to Americans, from Social Security to labor and civil rights laws. We have already seen a preview of what this could mean for the rights of LGBT individuals and families in the Arizona bill vetoed by Gov. Brewer last month.

It is important to note that, in the past, courts have rejected claims that religion-based arguments could allow restaurants to discriminate on the basis of race, or businesses to ignore wage-and-hour laws, for example. But several lower courts have ruled in favor of corporations in the birth control cases, and several justices seemed to favor their position this week.

The reason is apparent: It is because these jurisprudence-shifting questions are being re-litigated in the context of women’s reproductive health care. Attacks on birth control threaten to change the legal landscape on a broad swath of issues precisely because opposition to women’s reproductive rights on religious grounds has all too often been accepted and normalized. An exchange between the Hobby Lobby/Conestoga Wood lawyer, Paul Clement, and the female justices highlights this point.

Homing in on the far-reaching implications of the plaintiffs’ position that for-profit companies should be able to eschew laws that apply to the rest of us, Justice Sotomayor asked Clement what his clients’ arguments would mean for an employer’s ability to withhold coverage for blood transfusions or vaccinations. Similarly, Justice Kagan pressed him on the implications for corporate objections to sex discrimination prohibitions, minimum wage laws, family leave, and child labor protections.

Despite the fact that these are all health care services or worker protections that have had religious objections levied against them, Clement asserted that the Court could rule for his clients and not worry about those scenarios. Why? Because contraception is uniquely “religiously sensitive” and “fraught with religious controversy.”

What makes birth control more “sensitive” than other basic health care? What makes a requirement that women have access to equal coverage for preventive services more “fraught” than requirements that workers be paid a decent salary or that children be protected from abuses in workplaces?

The intimation isn’t subtle: It’s different simply because it’s birth control. In other words, it’s different because women’s reproductive rights and health can be targeted, attacked and denied. That is an argument that should be unacceptable in the 21st century. Unfortunately it’s a familiar refrain from opponents of women’s reproductive health that has gained acceptance in some courts. This should be an easy case – bosses have no businesses making our health care decisions and withholding essential health care coverage. “It’s different because it’s birth control” should not be a viable legal argument; there is no good reason that the Court should treat laws that protect contraception access differently from other civil rights laws and worker protections. And to be clear, although women’s interests got scant air-time at oral argument this week, these cases are fundamentally about women’s equality.

Birth control is basic, essential preventive care for women. Without the coverage regulations, high costs kept women from being able to use contraception consistently or having access to the most effective birth control methods that do the most to reduce unintended pregnancies – the burdens of which women uniquely bear. What’s more, by addressing gender gaps in health insurance, the coverage rule works to ensure that women – like men – will have their health care needs covered by insurance. These cases are also about gender discrimination at a deeper level. They are about the gender stereotypes that characterize motherhood and the capacity for it as women’s essential and proper role.

The notion that a woman’s capacity to become pregnant entitles for-profit companies to exercise control over her reproductive life, limit her opportunities and discriminate against her in the workplace is the same kind of thinking that the Court rejected in Johnson Controls when it explained that women should be able to make their own decisions about what employment opportunities to pursue and how to combine that with decisions about their reproductive health. It is the same kind of thinking that the Court rejected in Planned Parenthood v. Casey, when it acknowledged that “[t]he 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.”

And despite the attacks on contraception and the opposition’s attempt to minimize its importance, women across the country who use birth control to plan their families, protect their health, and lead robust lives, get what this is really about. So as we characterize what’s at risk in the Hobby Lobby and Conestoga Wood cases, let’s stop allowing those who would deny basic rights and fairness to get a foot in the door by making reproductive rights the target of their attacks. Instead, we need to fight back to protect women’s rights and advance equality for all of us.