Supreme Court’s folly

Ninety-eight percent of American women use contraception at some point during their child-bearing years. The benefits to health and personal liberty surely must be obvious by now to the general population and, you would think, to members of the Supreme Court. After more than a century of religious discussion of family planning, it must also be clear that for the overwhelming majority of women, that debate is over. The question posed by Hobby Lobby and then Wheaton College is to what extent women can be deprived of that right in deference to the religious beliefs of their corporate or religious nonprofit employers.

Although women’s rights are equally at stake, much of the public discussion of Hobby centers only on whether a profit-making corporation can hold a religious belief, just like a real person can. And if so, whether such a corporation can refuse to pay for insurance based on a false assertion that certain forms of birth control actually cause abortions. Women’s religious liberty has gotten short shrift. By deciding that a closely held corporation can have religious rights, the Supreme Court’s majority has indeed wandered into a minefield, as Justice Ginsberg warned in her dissent. Simply put, corporations are not individuals and do not have consciences. It’s a minefield invisible to a majority that refuses to recognize the religious liberty issues raised for women. Whose rights are primary – those of women or their bosses? Women are the immediately affected parties. Employers, on the other hand, are once or twice removed; their money pays for insurance that might in turn pay for contraception, but only if a woman employee or a covered dependent decides to use it.

The majority in Hobby assured us that a less restrictive alternative was available to the government that, in their view, would be a win-win result. The government could simply extend the accommodation already made to religious nonprofits that must only submit a form declaring a religious objection, so the responsibility of paying for contraception is shifted to the insurance company. Or as Justice Alito suggests, the costs could be shifted to the government.

So much for promises — three days later, that promise was undone. The court’s majority in Wheaton College decided they could think of a different way to provide the least restrictive measure required by the Religious Freedom Restoration Act. In an extremely rare occurrence under these particular circumstances, the court majority barred the government from enforcing the law. Why not just let the religious employers write a letter? Why not…whatever? The implications for the Employee Retirement Income Security Act (ERISA), the federal law governing employee health plans; the Affordable Care Act; the Religious Freedom Restoration Act; and for the regulatory process generally are now being untangled by reams of legal commentary. It all misses the point that Hobby is an insult to women and a threat to the religious liberty of women workers.

No legal case since Roe v Wade has so clearly exposed the underlying sexist implications of the current debates over providing for women’s health needs. No legal case since Roe has so dangerously threatened women’s ability to control their own bodies in accordance with their own religious beliefs and consciences. While women themselves have come to a consensus that reproductive healthcare is an essential part of their overall healthcare and at least as essential as providing Viagra to men, a powerful stratum of men apparently don’t think so. Some of them are on the Supreme Court and others are busily engaged in hypothetical workarounds that assume women’s rights take second place to the rights of their bosses.

Reproductive freedoms are integrally bound to religious liberty. When women’s rights are redefined to exclude the right to reproductive care taken for granted by men, women’s standing as equals affirmed by their religion and conscience are undermined. Our nation has made a commitment that health care is human right for everyone. The Supreme Court just legitimized a perverse notion: that a corporation can have a religion, and that its religious beliefs can be imposed on real people in the marketplace. Members of Congress and the President have an obligation to act immediately to restore women’s reproductive and religious freedom. Otherwise, women of all faiths and of no faith will suffer consequences that impact their everyday lives now and well into their futures. A dangerous precedent has been set. A door has been opened, and to think that no further harm will be done by those seeking to rush in, aided by their sympathetic allies on the bench, is very serious folly.

Kaufman is the chief executive officer of the National Council of Jewish Women (NCJW), a grassroots organization of volunteers and advocates that strives for social justice by improving the quality of life for women, children, and families.