Much has been written this week about how the Supreme Court’s decision in the Hobby Lobby case affects freedom of religion and corporate behavior.
My question, when I heard the decision, was this: This is a disaster for Hobby Lobby’s female employees, and potentially for thousands of others seeking coverage of contraception. But does the decision reach beyond that? How will it affect health care more broadly? Does this open the door to broader denials of health care? Will more of us–men as well as women–find our coverage of medication curtailed because of this case?
The majority opinion by Justice Samuel Alito tries to limit the decision to contraception:
This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.
But is he correct?
After a Google search failed to turn up much besides news articles reporting the decision, I took a look at some outlets where I thought I might find my question addressed.
I turned first to Slate, to see what its legal affairs writer, Dahlia Lithwick had to say. The court, she writes, extends religious freedom “with the promise (pinky swear) that it will not ripple into a series of disastrous outcomes when employers decline to afford their workers vaccinations, or psychiatric care, or equal pay, based on similarly strongly held religious convictions.” (I had to ask my wife what a pinky swear was.)
Lithwick is angry, and her post reflects that; the anger seems to muddy her thinking a bit. She makes this point: “For one thing we are—going forward—no longer allowed to argue the science. ‘It is not for us to say that their religious beliefs are mistaken or insubstantial,’ writes Alito. I’m a little unclear what she means by that; science doesn’t affirm or deny religious beliefs.
She does make an important point when she notes that Alito was dismissive of contraception’s benefits for public health, describing that as a “very broad” claim. But she mainly focuses on the religious questions, not those related to health care.
Lauren Hitchings at New Scientist wrote an interesting piece saying that Hobby Lobby’s case was based on an incorrect characterization of the birth control methods at issue. She clarified what Lithwick seemed to be saying about science being off the table. Hitchings wrote:
The two companies that brought the case believe that life begins when a sperm and egg meet. They are not opposed to birth control methods that prevent fertilisation, but condemn those that prevent the implantation of a fertilised egg – believing this amounts to abortion – citing the morning-after pills Plan B and Ella, and two intrauterine devices as examples.
If the Supreme Court had consulted the accepted body of scientific knowledge, however, they would have found that the companies’ religious beliefs were not in conflict with the birth control methods they opposed, says Pratima Gupta, a doctor at the San Francisco Medical Center and former board member of the pro-choice network Physicians for Reproductive Choice and Health. According to the US Food and Drug Administration, all four contraceptives in question work by preventing fertilisation – not implantation.
Now that’s an analysis we can use.
I found one more analysis of the decision, and it included this comment, which was the best thing I read on the case:
Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage…or according women equal pay for substantially similar work?
That came from the dissent written by Justice Ruth Bader Ginsburg. It’s the right question to ask.
-Paul Raeburn
Leave a Reply