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.
It’s been 40 years since the Supreme Court protected a woman’s right to make a decision about whether to have an abortion, and some are still trying to take that right away. In the world of abortion politics that’s dismaying -- but certainly not shocking news.
It’s been longer still since the Court first protected the right to contraception in Griswold v. Connecticut in 1965. And while many of us in the reproductive rights movement have long known that our opposition is keen to limit access to birth control as well, that largely came as news to the public. Watching in disbelief, many turned to activism as the availability of affordable contraception was attacked time and again this last year. Indeed, recently national attention has been laser-focused on birth control -- whether women should have insurance coverage for it, and what to do about the objections of employers who want nothing to do with it.
The federal contraceptive coverage rule -- one of the greatest advances in women’s health policy in decades -- guarantees insurance coverage of birth control, with an exception for houses of worship. Right off the bat a small but vocal opposition came out swinging, arguing that the rule is an unparalleled violation of religious liberty. These groups did not only want a sweeping set of loopholes, they pushed -- and are still pushing -- for the rule to be dismantled altogether, so that no woman would have its benefits, no matter where she works.
A federal court in Colorado recently put a temporary halt on the implementation of the Obama administration’s contraceptive coverage rule, with respect to one company. The contraceptive coverage rule requires insurance plans to cover contraception and stop routinely discriminating against women. The decision, if upheld, could pave the way for businesses to use their owners’ religion as an excuse to discriminate.
Here’s what happened, in a nutshell: Hercules Industries is a manufacturer of heating, ventilation, and air conditioning products that employs 265 workers. It argued that the contraceptive coverage regulation violated the company’s religious liberty because its owners are opposed to the use of birth control. Two similar lawsuits have been filed by other businesses, one in Michigan and one in Missouri.
Businesses exist to make money through commercial activity. By definition, their purpose is profit, not religious exercise. And for decades, the Supreme Court has recognized that entering into commercial activity means accepting that your faith cannot be imposed on those you employ. But Hercules Industries seeks to upend that common-sense rule. In its place, it proposes a theory that would let a business owner’s beliefs trump protections designed to safeguard workers – a radical break from our laws as we know them.