Ed. note: This is a guest post by Kara Loewentheil. Kara is a research fellow and the director of the Public Rights/Private Conscience Project in the Center for Gender and Sexuality Law at Columbia Law School. You can see more of her thoughts on the decision here.
Yesterday the Supreme Court ruled that some for-profit businesses do not have to comply with the Affordable Care Act’s requirement ensuring contraceptive coverage at no cost to the insured. The plaintiffs in these cases – and in almost 50 other cases filed making similar claims – claimed that providing coverage for various forms of birth control violates their rights under the Religious Freedom Restoration Act (“RFRA”), a federal statute that provides additional protections for religious believers beyond the minimum required by the First Amendment.
The Court’s decision held that (1) closely-held corporations (meaning that most of the shares are privately held by a small group of owners, and stock is not usually publicly traded) have religious free exercise rights under RFRA, (2) having to pay for contraceptive coverage would be a “substantial burden” on the plaintiffs (even though they could just choose to pay a tax to subsidize public insurance exchanges on which their employees could purchase comprehensive insurance instead), and (3) even if the government interest in providing comprehensive contraceptive coverage was “compelling,” the law was not “narrowly tailored” – meaning that the government could have achieved the goal in a different way that would not have violated the plaintiffs’ religious rights.
There’s plenty to argue with in that analysis – and Justice Ginsburg wrote a masterful dissent doing just that – but what’s done is done. So what comes next?
There are three big unknowns.
First, we don’t know how broadly this opinion reaches, or how slippery the slope downhill could be. The Court repeated several times in the opinion that it was only deciding the particular question here (contraceptive coverage, closely-held corporations, etc.) but there aren’t any principled reasons in the opinion to cabin it to that question. Why wouldn’t the same principles apply to a company that didn’t want to cover, say, blood transfusions (to which Jehovah’s Witnesses object) or psychiatric medication (to which Scientologists object) or even vaccines? And it’s not just insurance coverage at issue – it’s sex discrimination, race discrimination, sexual orientation, and gender identity discrimination, among other issues. What about a company whose owners believe men should be paid more than women because the bible teaches that men are the heads of the household? (True story, those cases have been brought before). Or a company whose owners believe that LGBT individuals shouldn’t marry or reproduce? (We’re all too familiar with that refrain). Or even a company who believes that African-Americans and Jews should not work with Caucasian Christians? (As many companies did in the Jim Crow era). Some of these scenarios may seem far-fetched, but there are no safeguards in the court’s opinion to prevent this expansive reading of RFRA from being used as a backdoor wedge to start undermining a lot of the civil rights protections we now take for granted.
Second, we can only guess how this ruling will affect the legal and social status of contraception – and the guessing doesn’t look good. We’re all too familiar with “abortion exceptionalism” – the way that abortion is considered “different” from other forms of health care, from other categories of rights, and from other indicators of equality. These cases are part of a concerted legal and social effort by anti-choice advocates to blur the boundaries between contraception and abortion and to taint contraception with the social controversy and stigma of abortion. In these opinions, contraception is isolated. It’s singled out from all other forms of medical care, and it’s singled out from other equality rights – and that makes it vulnerable to legal and social attacks on access from all sides. And that’s nothing to look forward to.
And finally, we don’t know what will happen next in the courts – or what the government will do in response to the decision. There are almost 50 cases in the lower federal courts filed by similar corporations that, after this decision, are probably now all going to be decided in favor of the religious objectors. Then there are over 80 cases filed by religiously-affiliated nonprofits that don’t even want to certify that they object because they say just signing the form violates their free exercise rights. And outside the courts, the Administration and/or Congress will have to decide whether and how to respond. The Court’s opinion was very clear that the accommodation that the Administration has offered to non-profit religiously-affiliated organizations (which allows them to certify that they object to providing coverage for birth control and then requires their insurance company to pay for it instead) would have been a “better” alternative because it would have maintained free access to contraceptives while not burdening the religious exercise of the business owners who sued. So the Department of Health and Human Services might be able to issue regulations making that change, or the Administration might be able to come up with some other way of ensuring coverage through executive action, or Congress might be able to amend the Affordable Care Act or pass stand-alone legislation providing national contraceptive coverage. There are a lot of options, but we don’t know yet which ones will transpire.
And if there’s no fix, then all those female employees of the objecting businesses will have to pay for their own birth control or will have to purchase private insurance on an insurance exchange that actually provides comprehensive coverage. As far as the majority opinion of the Supreme Court is concerned, that’s just the price of doing business.