Crucial Test

03.26.141:08 AM ET

The Birth Control Mandate Debate

The challenges to the Affordable Care Act’s birth control mandate currently before the Supreme Court misleadingly cloak themselves in the cause of religious freedom.

Today, the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius, two landmark cases that challenge the Affordable Care Act’s birth control mandate. Hobby Lobby and Conestoga Wood Specialties Corp. argue that the birth control mandate, which says employers must provide their employees with health care plans that cover all forms of contraception at no cost, imposes on their religious freedom, which “prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception.”

It’s because of this, they believe, that they should be exempt from covering emergency contraceptives, like Plan B or IUDs. If the highest court in the nation rules in favor of companies being able to refuse contraceptive coverage based on their beliefs, it would be an abuse of power, not an expansion of religious freedom.

What Hobby Lobby and Conestoga want the Supreme Court to do is grant them the ability to exercise their religious freedom in ways that would extend to their employees. As Justice Elena Kagan noted during this morning’s arguments, allowing companies to claim a religious exemption on absolutely anything they oppose would allow them to object “to laws on sex discrimination, minimum wage, family leave, and child labor,” as reported by The Wall Street Journal. This creates limitless opportunities for corporations to interfere in the personal lives of their employees on the basis that their private lives directly impact their employer. The insinuation here is that the reproductive health care and sexuality of female employees are their boss’s business and that those female bodies, to a degree, are the property of their employer.

Ironically, the challengers to the mandate don’t want their beliefs imposed upon but have no problem imposing those beliefs on others. Whether Hobby Lobby and Conestoga overlook or actively ignore this hypocrisy is important because it speaks volumes to what writer Sarah Erdreich refers to as ”anti-choice arrogance.” She argues that legislating “the private lives and choices of others ignores the reality that giving women and men greater control over their reproductive health is good public health policy.” Not only is it good public health policy—the right for decisions about contraception to remain a private decision was upheld by Griswold v. Connecticut, which struck down a Connecticut law that banned contraception on the grounds that it violated the right to marital privacy. If a woman is one half of that marital unit, it seems only logical that the right to privacy would extend to her as well outside the marriage since, of course, women are full and equal human beings.

In an effort to invalidate such protections, respectability and morality policing are standard practice for anti-choice groups and have contributed greatly to the stigma surrounding reproductive health care and female sexuality. Masked as religious freedom, the right’s desire to suppress female sexuality has manifested as a claim that supplying women with the tools to have safe sex is somehow a burden to their beliefs, as the challengers believe, an insinuation that women are mere vessels whose utility should be determined based on biblical preference. PolicyMic’s Elizabeth Plank argued in her latest column that progressives haven’t done enough to deconstruct the religious right’s foundational opposition to female sexuality, which has only fueled the moral superiority complex touted by opponents of the birth control mandate. If the Supreme Court decides that the plaintiffs can claim a religious exemption, this will further marginalize female sexuality and give corporations legislative authority to ideologically devalue female sexuality.   

That family planning makes good policy and economic sense isn’t the only fact that evades the challengers. The premise upon which Hobby Lobby and Conestoga built their case lies on false information: emergency contraceptives don’t induce abortion. As Dr. Lin-Fan Wang wrote for TPM Café yesterday, they “prevent pregnancy, not disrupt pregnancy.” Hobby Lobby and Conestoga aren’t opposed to providing their employees with other forms of contraceptives, only the ones that they believe to induce abortion. Yet, since emergency contraceptives don’t induce abortion, there’s no basis for their argument that the birth control mandate is trampling their religious freedom.  

While it’s reasonable to ascertain that Hobby Lobby and Conestoga sincerely believe the fundamental principles of their religion are compromised when providing insurance that covers emergency contraceptives, it’s unreasonable for them to expect that those beliefs should be imposed on their workforce. It’s clear from this morning’s arguments that the three female Justices (Ginsburg, Kagan, and Sotomayor) are standing firmly behind the administration in these cases, but what’s less clear is how the other justices will decide. Scalia, who in 1990 wrote the majority decision for Employment Division v. Smith and opined that a society that gave religious entities the authority to claim exemptions “would be courting anarchy,” seemed sympathetic to Hobby Lobby today and Justice Kennedy, as usual, is expected to be the swing vote.

With the Court expected to announce its decision in June, the justices must decide whether they will use this landmark decision to allow corporations to abuse their already ominous power to claim religious exemptions based on ideological opposition to their employee’s private lives, or whether they will stand with women and protect their right to reproductive freedom.

Jaclyn Munson is a feminist writer and reproductive justice activist. Her work has been featured at AlterNet, Salon, The Huffington Post and PolicyMic, where she is currently a columnist.
Follow her at [email protected]