Monday, June 30th, the Supreme Court of the United States ruled 5-4, in the second major blow to women’s reproductive rights legislature in the past week, that closely-held for-profit corporations cannot be required under the Affordable Care Act to provide contraception coverage if it violates their sincerely-held religious beliefs.
The verdict, propped up by the Religious Freedom Restoration Act of 1993, was sharply criticized by reproductive rights supporters and celebrated as a success for religious conservatives, the latter of which argued that some forms of FDA-approved birth control that fall under the contraceptive mandate are abortifacients, and are thus objectionable on religious grounds.
To properly understand the nuances of this Supreme Court case and the implications of such a decision, let’s first take a look at a few facts related to Burwell v. Hobby Lobby:
- The plaintiffs (collectively referred to in the case as Hobby Lobby) objected specifically to providing four forms of FDA-approved birth control (the Mirena and Paragard IUDs, and the emergency contraceptives Plan-B and Ella) because they believe they induce abortion. (In fact, there is no scientific evidence to suggest that they do — but more on that later.)
- Hobby Lobby is a closely-held corporation, defined as a corporation in which five individuals or fewer own 50% of the shares.
- The Religious Freedom Restoration Act, upon which the decision was based, dictates that strict scrutiny (the most stringent form of judicial review) be used when determining if first-amendment rights to religious freedom are being violated. Under strict scrutiny, the court determined that the Affordable Care Act’s contraceptive mandate imposed an undue burden on the religious freedom of corporations. There is a common perception that using strict scrutiny is damning for Supreme Court cases, but in reality 59% of religious liberty burdens adjudicated under strict scrutiny survive.The ACA’s contraceptive mandate in Burwell v. Hobby Lobby wasn’t so lucky, unfortunately.
- While Hobby Lobby could have simply opted to not provide insurance at all, pay a $2000 per capita penalty, and instead compensate their workers via increased wages so that employees can buy insurance of their choosing on the marketplace, this was deemed too burdensome by the court.
To get an idea of the sort of scope that Burwell v. Hobby Lobby potentially emcompasses, note that closely-held corporations comprise as much as 90% or more of all businesses, and more than half of US employees work for such corporations. Indeed, this verdict has far-reaching implications for American women seeking birth control as provided by insurance.
Intriguingly, the very reason Hobby Lobby objects to providing those four forms of birth control may be founded in a lack of evidence. Hobby Lobby and other religious conservatives argue that the four forms of birth control contested prevent a (already-fertilized) zygote from sticking to the uterine lining, and in this way prevent pregnancy. Whereas, they argue, forms of birth control that prevent fertilization from the outset are acceptable, forms of birth control that destroy an already-fertilized egg constitute abortion, since they believe life begins at conception.
But, while the mechanism by which Plan-B and Ella prevent pregnancy is not well understood, it is thought by experts to be mainly by preventing ovulation and the motility of sperm, and not by preventing implantation of an already-fertilized embryo. An excellent article (from a Catholic source, no less!) on the lack of a case against Plan-B and Ella as an abortifacient can be found here; similar information is documented by the International Federation of Gynecology and Obstetrics and many other reputable sources. While the copper and hormonal IUDs are shown to have an inhibitory effect on the uterine lining (thus being capable of preventing implantation), they still work primarily by preventing fertilization, mainly only inhibiting implantation when used as an emergency method. Even in the event that IUDs do prevent pregnancy by this secondary mechanism, it still does not constitute abortion because pregnancy, by medical definition, begins at implantation and not before.
One of the many commonly-heard liberal criticisms of the ruling is a reaction to the idea that corporations now have right to object to law on religious grounds; many liberals criticize the idea that corporations are people, arguing they shouldn’t be treated as such. This is well-intentioned but off the mark for many reasons. To argue against corporate personhood demonstrates a fundamental lack of understanding of how liberal societies and the business world intersect.
Obviously corporations are not (and should not be) entitled to the full range of perquisites related to being a physical person. Yet the legal benefits that are ascribed to corporations as a result of the doctrine of corporate personhood are extremely necessary to society and the economy as we know it, and should not be overlooked. We have the notion of corporate personhood to thank for the right of The Flounce to publish opinions such as this under the First Amendment (which applies to people), for example, and for the right for a corporation’s property not to be unreasonably searched or seized (a right afforded to individuals). The fact that corporations are de jure persons is not necessarily a bad thing and frequently offers many positives — but the problem begins exactly at the moment that corporate “people” are allowed to exempt themselves from the law based on their personal beliefs. That, ultimately, is where Hobby Lobby and the conservative Supreme Court majority are dead wrong.
It’s the kind of privilege only afforded to institutions considered as sacrosanct as religion. Had Hobby Lobby objected to the mandate on any other grounds, they would have been laughed out of court (and, indeed, I think they should have been in this case). But religion is special. We regularly give people a pass because of their religion, neglecting that while their beliefs may be “sincerely-held”, it is still a choice. We should celebrate Hobby Lobby’s right to practice freely and respect their choice to identify as a Christian corporation (and with it, their right not to supply certain goods on their shelves that they deem objectionable) while holding them to the same legal standard that everyone else is subject to.
One of the most amusing (and disingenuous) ideas perpetuated by the pro-Hobby Lobby crowd is that the case of Burwell v. Hobby Lobby was merely about the four forms of birth control deemed by the company to be abortifacients, and that it shall not extend to other forms of birth control or other aspects of medical coverage deemed objectionable. While the decision of Burwell v. Hobby Lobby only covers the contraceptive mandate of the ACA, it is not at all hyperbolic to argue that this case sets precedent for closely-held corporations to argue for other special exemptions from the law based on religious objection.
What this case is really about is the idea that corporations have the entitlement to object to the law based on religious grounds, and that a viable case can be made for their exemption on that basis. Not only can more extreme conservatives who oppose all forms of birth control now exempt themselves from complying with the contraception mandate, but it is indeed possible (although, I admit, remote) that virtually any medical procedure objected to (for example, blood transfusions in the case of Jehovah’s Witnesses) can be exempted from coverage if it violates a corporation’s “sincerely held” religious beliefs. This is a notion that we should view as a miscarriage of justice, and the possibility must be fought against in earnest.
While corporations are persons for most legal intents, and while persons should have the right to religious freedom, corporations should not have the right to exempt themselves from aspects of the law they find personally disagreeable — whether for reasons religious or purely intellectual. Had former president Bill Clinton foreseen that the law he would sign into effect in 1993 would be used as the basis for allowing corporations to deny women coverage of contraception, I suspect he would have had serious reservations.
But what is a temporary win for the religious right may ultimately be the undoing of the Republican party: more and more people are rallying in favor of women’s reproductive rights as time goes on, and fewer and fewer favor policies that limit access to cost-effective family planning options. In the end, opposing integral aspects of women’s health, whatever the reason, is a fight that conservatives cannot hope to win.