Balkinization: Court Rules Government Can Restrict Women’s Statutory Right to Contraception Based on Employer Opposition

Court Rules Government Can Restrict Women’s Statutory Right to Contraception Based on Employer Opposition

Priscilla Smith

(Cross-posted from Human Rights at Home blog, here)

I suppose we are meant to be grateful for the Court’s opinion recognizing that discrimination against gay, lesbian and trangender people is sex discrimination under Title VII, as Andrew Koppelman explained a generation ago and discusses in a July 10th post here. And also for the Court’s opinion in June Medical that preserves, for now, the right to abortion. But the decision in Little Sisters of the Poor v. Pennsylvania is a real kicker, and not just because it upholds a regulation that undermines the “contraception coverage” provision of the Affordable Care Act.

This contraceptive coverage requirement became part of the ACA by virtue of the “Women’s Health Amendment.” It was designed to address discrimination against women in health care, disparities in the provision of care, and thus to contribute to increased equality for women. It requires employer based insurance plans to include coverage at no cost for all medically-approved forms of contraception. Importantly, this coverage is required to include the most expensive and most effective form of contraception—the IUD. The new regulation upheld by the Court exempts from this requirement any employer that has a religious or moral objection to contraception, to providing insurance that includes coverage for contraception, or to providing a statement indicating these objections. The word “moral” seems designed to signal religion but of course it is a limitless term. It would be more honest just to say religious or “ideological” objection to contraception.

The case is mostly being framed by the Court and reporters alike as a referendum on government imposition on religious exercise. In this frame, the free exercise of religion wins. See, e.g., Adam Liptak, Court Allows Religious Opt-Out on Birth Control, New York Times at A1 (July 9, 2020). But the important question here is the opposite of that. This case is instead a referendum on government actions that restrict the rights and interests of some to accommodate the beliefs (religious, moral, ideological) of others. How far can the Government go to accommodate opposition to contraception (religious, moral, ideological) when doing so tramples on women’s rights to no-cost employer based contraceptive coverage, and their interests in their ability to, as Justice Ginsburg puts it, “chart their own life’s course.” See Little Sisters v. Pennsylvania, No. 19-431 at *5 (Ginsburg, J., dissenting) (July 8, 2020). The answer from this Court is very far.

Seen in this (correct) frame, the headline changes. See above. The focus is on the women who lose their statutory right to the coverage, not the Religious Objectors – who are not necessarily religious at all. This is of course a bad decision for women, for their access to contraception, for their ability to avoid pregnancy, for their ability to decide whether and when to have children, what job to have, all the things that are included in one’s ability to chart a life’s course. It is also of course a bad decision for men whose partners seek contraception.

But it has much broader implications, implications we should not miss, for the ability of government to create mechanisms to impose religious, moral, and ideological beliefs it chooses in ways that undermine the rights of others—statutory or constitutional rights. As the dissent points out, accommodations like these have never before “allow[ed] the religious beliefs of some to overwhelm the rights and interest of others who do not share those beliefs.” See Little Sisters v. Pennsylvania, No. 19-431 at *1 (Ginsburg, J., dissenting) (July 8, 2020) (citing Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); United States v. Lee, 455 U.S. 252, 258-260 (1982)).

Some will argue that this is a one-off because it is about contraception (by which they mean it is about abortion), and so it won’t concern them. Others could argue that this is a one-off because it is about women and motherhood (by which they mean it is mostly about abortion but also about the “bonds of love between a woman and her child”), and maybe that will concern them only slightly more. It is certainly true that people in this country become insane when debating the role of women, questions of motherhood.

But even if you don’t really care about women and their “issues,” that doesn’t mean this decision doesn’t have legs that can travel. This decision gives carte blanche to governments to trample on the rights of some to accommodate the beliefs of a chosen group of others, whether those beliefs are rooted in religion or not. Who gets accommodated and who gets trampled is just a question of who is in power that day.

Posted 10:29 AM by Priscilla Smith [link]