Earlier this year, Secular Woman signed an amicus brief filed by the National Women's Law Center in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius. These cases involve for-profit companies challenging the Affordable Care Act's requirement that all new health insurance plans cover the full range of FDA-approved contraceptives and related education and counseling, without cost sharing.

Then, this week, in a 5-4 decision, the Supreme Court decided in favor of Hobby Lobby. Hobby Lobby sought to impose religious beliefs upon employees by denying comprehensive health care coverage, while still reaping the tax benefits for providing that coverage. The majority opinion, written by Justice Alito raises more questions than it answers.

Perhaps the most obvious result of the Court’s decision is that it extends religious rights, citing Religious Freedom Restoration Act of 1993, to any closely held “corporate persons.” In doing so, however, they negate both the religious and reproductive rights of employees, who are actual persons. How does that correlate with the Act, which codified religious rights for people and religious entities? Also, does ascribing the personal beliefs of owners to their business pierce the corporate veil?

How can the Justices rationalize overlooking both science and law?

In their case, Hobby Lobby objects to four of the twenty birth control methods currently approved by the Food and Drug Administration. Coincidentally, these are four of the most effective methods, and are included the vast majority of insurance formularies. The objection to these is based on religious belief, not science, with the claim that these methods cause abortion instead of prevent pregnancy. However, by both scientific and legal definitions pregnancy occurs when a fertilized egg is implanted in a hospitable uterine lining. How can the Justices rationalize overlooking both science and law?

People purchase insurance, or it is provided either in whole or in part as part of employee compensation, and should expect to be covered. That a corporation was given the right to dictate to an insurer which services they can and cannot provide is unconscionable! With Justice Alito’s reasoning, it would follow that any employer could dictate to employees whether they can purchase other objectionable things like intoxicants, pork products, or even beverages containing caffeine. Will the intrusion stop at birth control or can we expect more?

Hobby Lobby may find fault with either of these solutions and sue again.

What this decision forces our government to do now is to provide that coverage, either by funding it or, more likely, by allowing the insurance company to provide it separately. Hobby Lobby may find fault with either of these solutions and sue again. So, if birth control is purchased with tax dollars, or provided to employees without cost, will their objections hold? They pay taxes after all… so, where is the line drawn?

Justice Ginsberg wrote a scathing dissenting opinion which addressed some of these gaping issues – recognizing the magnitude of this ruling, its likely impact, and that it was a “decision of startling breadth.” In what seems to be an attempt to mitigate that, there were several clarifications in the court’s majority opinion, each more disturbing than the last.  

Justice Alito intends to set the high court up as arbiter of what is and is not a valid religious belief.

It would seem that with the statement, "[t]his decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates, that is for blood transfusions or vaccinations, necessarily fail if they conflict with an employer's religious beliefs," Justice Alito intends to set the high court up as arbiter of what is and is not a valid religious belief.  This sets a dangerous precedent whereby courts may determine the validity of religious belief, leaving the door open to discrimination against minority religious practices and making it more likely that religious beliefs which harm minorities and women will be legally sanctioned. One may find it necessary to question the wisdom of that.

The clarification that, “It does not provide a shield for employers who might cloak illegal discrimination as a religious practice,” adds to, rather than subtracts from, the worrisome precedent set here. Under the previous administration, the HHS ruling was that if any medications were covered, a specific class could not be excluded. To exclude a class of medications which are primarily used by women is discrimination on its face. There was no objection to providing coverage for birth control before ACA. Why the change, and why now? Is discrimination no longer discrimination?

Finally, there lies a question in the financial implications for the insurance companies. Insurers are incentivising preventative care because it saves them money. In addition to prevention of pregnancy, which is a huge part of preventative health care, these medications are used to treat all sorts of things, from acne to endometriosis. Hobby Lobby now gets to prevent insurance companies from saving money, while also getting a tax break for making insurance available that doesn’t even have to meet the ACA’s minimum standards!

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