The “freedom” to deny women health care

July 3, 2014

Corrie Westing explains why the Supreme Court decision in favor of Hobby Lobby is about choosing corporations over women's health--and workers' living standards.

GIVEN HOW terrible recent years have been for reproductive rights, no high court ruling or congressional vote can really come as a surprise any more.

But they're infuriating nonetheless.

When the Supreme Court issued its two conservative decisions this week--one ruling against buffer zones that limit protests against women's health clinics and another allowing employers to opt out of covering some methods of birth control--it signaled that the war on women is still in full swing.

With its 5-4 ruling in Burwell v. Hobby Lobby, the Court ruled that "closely held" corporations--defined as companies in which five or fewer individuals own a majority of the company's stock--are exempt from the Affordable Care Act (ACA) requirement to provide health insurance coverage for all FDA-approved birth control methods. Citing religious opposition to funding its employees' use of intrauterine devices (IUDs) and emergency contraception (EC), the crafts store chain Hobby Lobby won its case and will now not have to include these options in their employee health insurance benefits.

Supporters of reproductive justice rally outside the U.S. Supreme Court building
Supporters of reproductive justice rally outside the U.S. Supreme Court building

At first blush, the most outrageous component of the Hobby Lobby case is the bad science on which it's based. The Green family that owns Hobby Lobby was allowed to argue that it has the right to opt out of covering the IUD or EC, because according to the owners' religious beliefs, they cause abortions. The reality, however, is that these methods of birth control prevent pregnancy and aren't capable of, nor appropriate for, ending a pre-existing pregnancy.

IUDs work primarily by making the uterus a hostile environment for sperm, inhibiting sperm from reaching an egg to fertilize it, but they may also function by stopping ovulation. There is some evidence that IUDs may stop a fertilized egg from uterine implantation. There is universal medical and scientific opinion that this does not give the IUD any abortifacient properties--yet the medical experts over at Hobby Lobby feel differently about science.

As Cathy Lynn Grossman pointed out in the Washington Post, Hobby Lobby executives have decided to redefine reproduction with new "science" equating conception, fertilization and pregnancy. Using this argument, they were able to opt out of covering birth control methods they find morally repugnant.

They must be taking a cue from such women's health "experts" as Rep. Todd Akin (R-Mo.), who claimed during the 2012 election campaign that "legitimate rape" rarely causes pregnancy.

Anyone can redefine women's health these days, as long as it's used to undermine women's bodily autonomy. Jay Michaelson put it perfectly at the Daily Beast: "If I believe the sun revolves around the Earth, is that now a disputable fact? According to Justice Alito, yes. If I have a religious belief that it does, then it doesn't matter that it doesn't."

So not only did "corporate personhood" allow Hobby Lobby to be granted religious freedom under this ruling, while denying human women workers reproductive freedom, but Hobby Lobby and its co-defendants are getting away with using bad science to justify not covering contraceptives.


IT'S ABSURD that this is what the majority of the Supreme Court considers "religious freedom"--the right to redefine science at the cost of others' rights. But is it just about policing women's reproductive lives? Is it only about contraception, abortion and ideology?

The Hobby Lobby case was certainly framed by ideology and has largely been viewed by the right and the left as a choice between religious freedom or women's rights. And to be clear, the only way that the anti-contraceptive argument gets a hearing at all, given that the contraceptive mandate is widely popular, is because public opinion in favor of abortion is much less strong.

So it's easy for Hobby Lobby's lawyers and spokespeople to claim this as a matter of their religion's interpretation of birth control as an abortifacient because no one is willing to speak up for abortion these days. The ideological path to this bogus argument was paved by all the debates in the construction of the Obama health care law about how to ensure that abortion stayed out of the range of coverage, as well as an earlier decision exempting not-for-profit and religious organizations from the birth control mandate.

But ideology is only part of the story. Consider this: Hobby Lobby is a for-profit corporation whose owners' religious beliefs clearly don't conflict with their for-profit business model. The contraception methods they claim to oppose happen to be the most expensive--for example, IUDs can cost hundreds of dollars, but last three to 10 years. Could it be they don't want their employees' health coverage cutting into their bottom line?

Also, if they were so opposed to contraception, why did they invest more than $73 million in their employee retirement plan in none other than Teva Pharmaceutical, Pfizer and Bayer--producers of IUDs, EC and actual abortifacients?

Contraceptive issues are rarely "just" about the rights of people to prevent unwanted pregnancy. In this instance, while President Obama and pro-choice groups are opposing Hobby Lobby on the basis of privacy concerns, the broader issue is that the contraceptive mandate--one of the few progressive elements of ACA--actually did provide workers' protections. Yes, your employment-based health insurance had to include full contraceptive benefits. If for-profit corporations can get out of providing one more workers' protection, they will.

This is why the union movement must recognize that what are considered "women's issues" are actually class issues. Hobby Lobby decided to come after their workers' rights with an anti-woman message, but the consequences of this decision won't stop at women workers. They may have gone after women in this instance, but that tack is also a cover for weakening working conditions overall and increasing the precariousness of the low-wage service sector, which is made up primarily of women and people of color.


THIS DECISION is a gift to corporations and will help Hobby Lobby increase its profits. It seems likely that there will be some "out" for workers at the affected corporations, such as the federal government funding the "controversial" birth control methods Hobby Lobby doesn't want to pay for. In other words, corporate welfare justified by religious rights.

At the same time, these corporations won't be forced to add actual pro-family policies when more of their workers are pregnant and need programs that support healthy pregnancy, childbirth, postpartum and parenting--such as paid maternity leave, accommodations for lactating moms and free on-site quality child care.

Never mind the added social and economic costs of unsafe and self-induced abortion that women can be at risk for when they don't have full control over their reproductive lives, as Lynn Paltrow of the National Advocates for Pregnant Women explained at RH Reality Check.

The ACA may have some progressive aspects--such as expanding Medicaid and barring insurers from withholding coverage because of "pre-existing conditions"--but it didn't change three major flaws in health care in this country: health care is linked to employment for a majority of people; the insurance and pharmaceutical industries remain for profit; and abortion is marginalized and stigmatized, rather than being considered a normal part of health care needs.

The Hobby Lobby decision exposes these weaknesses in new ways--and should be a lesson for social justice fighters that we have to organize in new ways.

We need a fighting movement that links demands for workers' job protections and an unapologetic struggle for reproductive freedom, including access to birth control, abortion and improved maternal health and paid family leave.

Hobby Lobby shows us the dangerous consequences of not building such a movement--but the Supreme Court's decision may also spark the anger necessary to help put a fire under it.

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