By Elizabeth Sepper, Associate Professor of Law, Washington University School of Law
Access to contraception long seemed settled and remote from the culture wars. After all, 99 percent of American women use birth control during their lives. Twenty-eight states already require insurance to cover contraceptives. Yet, contraception has emerged as the most hotly contested legal issue of 2014. Next week, the Supreme Court will hear a challenge to the Affordable Care Act’s requirement that health insurance nationwide cover contraceptives. The challengers – Hobby Lobby, a craft store chain, and Conestoga, a cabinet manufacturer – are just two of the many for-profit, secular businesses to claim that contraceptive coverage violates corporate free exercise of religion under the Religious Freedom Restoration Act and the U.S. Constitution.
The right of women and men to control their reproductive lives – without their boss’ say-so – hangs in the balance. More than half of U.S. women between ages 18 and 34 cannot afford birth control. Poor health outcomes for mother and child result from unintended pregnancies. Requiring employee insurance to cover contraception is key because half of Americans are insured through their jobs. Before the ACA, many insurance plans did not cover the most effective contraceptives, such as IUDs. Women paid 68 percent more in out-of-pocket health costs than men, in part due to the costs of contraception and reproduction.
But the importance of the Hobby Lobby and Conestoga cases isn’t limited to contraception. For the businesses to prevail, the Court would first have to decide that corporations can exercise religion like human beings – a radical proposition. It would then have to conclude that contraceptive coverage is a burden on corporate religion that can’t be justified by the significant public health and gender equality benefits that birth control coverage brings.
If the Court sides with Hobby Lobby, employees will bear the costs of religious beliefs of corporations. Employees in all workplaces could lose the benefit of any insurance mandate. Corporations could resist covering counseling and testing for sexually transmitted infections. Unmarried women could be denied prenatal care. Employers could oppose covering the HPV vaccine based on the misguided belief that it causes promiscuity. Still others could refuse to include depression screening or kids’ vaccinations in employee insurance.
And that’s just where it begins. A win for Hobby Lobby could resurrect businesses’ attempts to exempt themselves from Social Security, minimum wage, worker’s compensation, antidiscrimination, health, and safety laws. Courts had long rejected such claims. Under the logic of Hobby Lobby, businesses might now prevail, at significant cost to their employees. Employees everywhere would have to worry that their companies might refuse to comply with laws that protect equality and create a safety net. Businesses could argue that religious belief entitles them to pay women less, fire pregnant women, or deny spousal benefits to same-sex couples. Consumers could face heightened discrimination as well. Pharmacies could refuse a patient HIV medication. Hospitals could bar a man from visiting his same-sex spouse. A hotel could disallow bookings by unmarried couples.
A win for Hobby Lobby would open the door for secular, for-profit companies to find religion and demand a veto over their employees’ private decisions. At heart the question for the Court is: Can a corporation have a “conscience” that trumps individual freedom and allows business owners to impose their beliefs on employees and consumers? In the past, the Court answered that question with a resounding 'no' – equality in the workplace and the marketplace rides on the Court doing so again.