By Kathy Greenier, Reproductive Freedom Project Director
Update: In a 5-4 decision, the U.S. Supreme Court ruled on Monday that closely held corporations with religious objections cannot be required to provide birth control coverage for their employees. While the decision applies only to access to birth control, and not other health care services, and the ruling still allows the government to pay for the coverage itself so that women can receive access to critical health care, the ruling is a defeat for Virginia women and a win for those who would turn religion into a sword to be used to force their beliefs on others. At its core, this case was about whether business owners can force their personal religious beliefs on their employees – and the Court incorrectly said yes. Religion should not be used to limit the rights of others, in this case by discriminating against women, by denying them equal access to preventive health care offered to other employees.
On Monday, the U.S. Supreme Court will decide Burwell v. Hobby Lobby, a case about whether your boss should be able to discriminate by denying employees access to birth control coverage they are entitled to under the law. While this case is focused on access to birth control, its implications extend well beyond a woman’s right to make private, personal health care decisions.
Whether it’s bosses trying decide what birth control their employees use, businesses denying service to same sex couples, or a law passed in Virginia this year that allows state-licensed genetic counselors to deny counseling to patients based on moral or religious beliefs, religion should not be used as a license to discriminate. The decision of what birth control to use should be between a woman and her doctor—not her boss. It’s really incredible that this is even on the table in 2014.
So, how did we get here?
Take Virginia as an example of this dangerous path toward so called “conscience clause” exceptions that justify discrimination under the veil of religion. In the 1970’s, the Virginia legislature passed a “refusal bill,” still in effect, that allows hospitals and health care professionals to refuse to offer abortion to Virginia women based on “personal, ethical, moral or religious grounds” even where the woman’s life is at stake. Fast forward 40 years – in 2012, the Virginia legislature passed a law that allows state-funded adoption and foster care agencies to refuse to serve prospective parents or needy children on the same grounds. In 2013, the Virginia legislature passed a law that requires public colleges and universities to recognize and fund student political and religious organizations even if the organizations intentionally discriminate against gay or lesbian students (or people of different faiths or parties) in their membership or leadership. And, earlier this year the Virginia legislature passed a genetic counselor licensure bill that allows genetic counselors to deny services to anyone if doing so would conflict with their religious or moral beliefs.
As this history shows, sadly Virginia is no stranger to the use of religion to discriminate, and we saw the debate open up on the nationwide level when in 2011, women’s health advocates won an incredible victory when the U.S. Department of Health and Human Services released a rule that requires new health insurance plans to cover birth control, along with other essential preventive services, at no extra out-of-pocket costs. The rule includes an exemption for churches and other houses of worship. In early 2012, the Obama administration announced a modification, allowing religiously affiliated organizations, including hospitals and universities, to opt out of contributing to contraceptive coverage. Instead, insurance companies must provide that coverage (at no cost) directly to the employees of those organizations. The result is that women should get seamless birth control coverage no matter where they work. Unfortunately, even these exemptions aren’t enough for opponents of birth control.
Enter Hobby Lobby. Hobby Lobby, a for-profit corporation that’s not religiously affiliated, and thus is required to provide health insurance plans that cover birth control, is challenging the rule as an infringement on religious liberty of the corporation’s owner. This position turns religious freedom on its head – religious freedom is a shield intended to protect a person’s own rights, not a sword to be used to discriminate against others.
If bosses can ignore federal law and deny their employees access to birth control, what’s next? Perhaps a business owner who believed immunizations were contrary to biblical precepts could refuse to cover vaccinations for his employees’ kids. Or a CEO who found a gay employee morally repugnant could decline to cover HIV testing. Even broader, perhaps a state legislature could pass a law allowing businesses to deny service to same sex couples, like Arizona attempted earlier in 2014.
We’ll find out on Monday whether the Court will allow religion to become a tool to justify discrimination. No matter the outcome, we’ll be here to answer your questions and talk with fellow advocates. Make sure to join us on Wednesday, from 12-1 pm, by following #LibertyChatVA on Twitter.