SCOTUS has walked us out onto a slippery slope

The U.S. Supreme Court just upheld two Trump administration rules that allow any “non-governmental employer”— even publicly traded for-profit companies — to deny their employees the contraceptive coverage provided by the Affordable Care Act (ACA) based on “moral” or “religious” objections. Last month, when the Court narrowly struck down a Louisiana law that would have limited access to abortion services, pro-choice advocates celebrated, but this new ruling is a blow to reproductive rights and health.

The Court based its new ACA decision on reading of the Religious Freedom Restoration Act of 1993 (rather than broader constitutional issues), and found, disturbingly, that publicly-traded corporations may claim exemption from providing contraception coverage on the grounds of “moral” objections. Ten years ago, in a highly controversial 5-4 decision, the Court ruled in Citizens United v. Federal Election Commission that corporations have First Amendment freedoms that permit them to spend unlimited amounts of money on campaigns. It now appears corporations also have been given the freedom to impose their “moral” preferences on employees, even when they conflict with law.

The ACA requires health insurers to provide preventive health services and screenings for patients at no cost. This includes all 18 methods of contraception approved by the Food and Drug Administration. The ACA birth control benefit provides expanded contraceptive coverage with no out-of-pocket costs to more than 62 million women, including 17 million Latinas and 15 million Black women. Now, because of the new Supreme Court ruling, some of these workers, students, and dependents are at risk of losing their access to birth control. It’s a devastating setback for reproductive rights that a boss’s moral opinions can dictate an employee’s ability to access fundamental health care services.

The ACA already included religious exceptions that consider employers’ beliefs. During the Obama administration, an exception was made for houses of worship that objected to covering contraception. A similar accommodation was made for religiously-affiliated institutions, like schools and hospitals, that allowed them to refuse to pay for birth control coverage, but in those cases, the organization’s health care insurer, not the employer, had to provide coverage for contraceptives at no cost to the student or employee.

Now that the Supreme Court has upheld the Trump administration’s rules, schools, hospitals, non-profits, and publicly-traded companies — not just churches and other religiously-affiliated institutions — can deny contraceptive coverage by citing moral or religious objections, without any mechanism for providing that coverage another way. On the boss’s say-so, coverage will simply get dropped.

The timing of this decision is catastrophic. At a time of almost unprecedented strain on workers, it will put an even greater burden on them, especially on women. The loss of birth control coverage will hit lower-income women and their families hardest, due to the out-of-pocket costs that they could now have to absorb.

Many women rely upon birth control to stay in the workforce and pursue their careers. One-third of the wage gains women have made since the 1960’s can be attributed to increased access to oral contraceptives. That progress now stands to be lost if women are forced to pay for birth control.

Fifty-eight percent of women who use oral contraceptive in the U.S. rely on the pill, at least in part, for medical purposes other than birth control. For these women, losing insurance coverage for oral contraceptives hurts their ability to manage medical issues such as endometriosis and polycystic ovarian syndrome.

The Supreme Court decision effectively gutting ACA contraceptive coverage may play well with Trump’s political base, but not with most Americans. There is no popular mandate for taking away birth control coverage. Eighty-two percent of Americans surveyed believe that women should be able to have birth control coverage through their health insurance, regardless of their employer’s moral objections.

No one really knows how many employers will deny contraceptive coverage to their employees as a result of this week’s ruling. In its filings to the Court, the Trump administration estimated that between 70,500 and 126,400 women of childbearing age will lose coverage because of its regulations. But as Justice Ruth Bader Ginsburg noted in her dissenting opinion, the number could be higher.

Nor is it clear, based on this decision, what other health care services may be denied one day because an employer objects to them morally. Could corporate bosses deny employees access to hormone therapy, STI and HIV screenings and treatment, or vaccines, simply by saying they think the services are immoral?

If so, it’s an untenable state of affairs. To help remedy it, Congress should take another look at the Religious Freedom Restoration Act. The idea that big corporations can arbitrarily impose their preferences on employees as a matter of “religious” expression, to the detriment of public health, needs closer examination, and won’t stand up to scrutiny.

Bridget Kelly is the Director of Research with the Population Institute, a nonprofit based in Washington, D.C. that supports reproductive health and rights.