The United States Supreme Court yesterday voted 7-2 in Little Sisters of the Poor v Pennsylvania to uphold rollbacks to Obamacare that would allow employers with religious or moral objections limit access to birth control coverage. Between 70,000-126,000 women could lose contraceptive coverage as a result of this decision, which saw two liberal judges side with the conservative bloc.
In an earlier unanimous decision of the Court of Appeals for the Third Circuit, which blocked the rollback, Judge Patty Shwartz wrote: “Cost is a significant barrier to contraceptive use and access. The most effective forms of contraceptives are the most expensive. After the A.C.A. removed cost barriers, women switched to the more effective and expensive methods of contraception”. It is clear that this is a decision that will affect women on low-incomes (frequently Women Of Colour) most drastically.
The Roberts Court has proven itself fairly willing to limit access to contraception. An earlier decision, Burwell vs Hobby Lobby Stores, had allowed religious for-profit organisations to claim the same exemption that was granted to non-profits in the original legislation. Originally the ACA mandated that employment-based healthcare plans must include FDA-approved contraceptives. While exemptions were available for religious employers and non-profit religious institutions, for-profit organisations like Hobby Lobby Stores were not exempt. The conservative bloc, lead by Justice Samuel Alito in a 5-4 majority, argued that the Religious Freedom Restoration Act of 1993 allowed companies to deny employees access to contraception through a work-base insurance plan.
The underlying argument for the decision in Burwell v Hobby Lobby Stores is that corporations are composed of individuals. Corporations can claim, therefore, the right to religious freedom. The contraceptive requirement forced religious companies to go against their stated principles. As there was a less restrictive method for the government to satisfy their interests – as proven by the exemptions for non-profit institutions and religious employers, this exemption should also be applied to for-profit corporations, according to the Supreme Court. In a concurring opinion, Justice Kennedy also argued that the government had not fulfilled its obligation to prove that there was a meaningful difference between religious non-profits and religious corporations.
In yesterday’s decision, Justice Thomas wrote in admiration of the Little Sisters of the Poor and similar organisations: “for the past seven years they – like many other religious objectors who have participated in the litigation and rulemaking leading up to today’s decision – have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs”.
Trump’s rollback allowed employers to claim exemptions on religious or moral grounds. Justices Elena Kagan and Stephen Breyer, who are typically considered to be members of the liberal bloc, agreed that the Trump administration had the authority to grant further exemptions. They also argued that the case should be sent back to the lower court for review, questioning whether proper administrative procedure had been followed, highlighting that many women would be left without access to birth control. However, this was not enough to convince these Justices to protect the private healthcare decisions of employees.
Only the liberal bastion, Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor dissented. Ginsburg, in the dissenting opinion that was joined by Sotomayor, wrote: “the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree”.
A protection of the rights of individuals, and subsequently a protection of the corporations that these individuals create, does not apparently include protection of individuals’ private healthcare decisions. Religious groups that seek to deny women access to contraception are interfering in a realm in which they should have no influence whatsoever. Religious freedom should not be allowed to interfere in the decisions of others, especially in decisions surrounding healthcare. Those who have a religious or moral objection to contraception do not have to take it, but they should not be allowed to impose their views on others, especially when doing so could have a real and tangible impact on a person’s health. If employers are mandated to provide healthcare insurance, they should not be also given the power to pick and choose which aspects of healthcare to offer. Most employers are not qualified physicians.
The religious organisation who object to the requirement in the ACA, either totally or to the contraceptives that are tantamount to abortion (a claim that is not supported by scientific fact) ignore a crucial use of birth control. Birth control is not solely used for the prevention of pregnancy: it also helps to treat many other conditions. Organisations such as Little Sisters of the Poor are not only denying women access to birth control, but they are also denying them access to FDA approved drugs that can help to combat conditions such as PMS and pelvic inflammatory disease, as well as reducing the risk of cancer of the ovaries, womb and colon.
That cost will once again become the biggest hurdle to many women’s access to abortion, and means that women on low incomes are going to be hit hardest by this ruling. The most effective contraceptives are also the most expensive, and this ruling also completely ignores the cost of an unplanned pregnancy or the economic impact of the conditions that the pill is commonly used to treat. The Court also side lined the disproportionate impact that this decision would have on the healthcare of Women Of Colour, who already face discrimination in many aspects of medicine.
As conservatives look towards their holy grail – a Supreme Court decision on abortion – this latest attack on reproductive rights is not a good sign for protectors of a woman’s right to choose. Trump has packed the court with conservative judges who clearly prize so-called religious freedom over bodily autonomy, or even the right of physicians to treat appropriately. The sad irony is this: the right to religious freedom implies a right to autonomy and privacy, the very rights that this decision threatens.