Cos (cos) wrote,

Supreme Court contraception decision... differently terrible than it seemed

You probably already know that the US Supreme Court ruled in favor of Hobby Lobby, a company that said it violated their religious beliefs to provide health insurance plans to their employees that pay for contraception. After learning more about it, I realize this decision is not quite as horrible as it first seemed in the way that it first seemed, though it's quite horrible in another way.

One of the first things I wondered when I heard about it was, waitaminnit, isn't that totally at odds with the 1990 decision about peyote? In that one the court said that the Constitution didn't protect someone's use of peyote for religious purposes - it was still illegal if the law said using peyote was illegal. Did they overturn that precedent?

But no, they didn't. This new decision is actually not Constitutional. Instead, it's a decision about the "Religious Freedom Restoration Act", a law Congress passed in response to the peyote decision. If the Constitution doesn't give people religious exemptions from otherwise illegal acts they do for religious purposes, Congress decided, we'll just make it so the law gives people such exemptions instead. Yesterday the Supreme Court didn't say Hobby Lobby has a Constitutional right to not pay for this insurance benefit, it said the RFRA (a law passed by Congress) allows them to not pay for such plans.

Under the RFRA if any other law impinges on someone's religious beliefs, they get an exemption unless the law a) advances an important interest, and b) does so in a "narrowly tailored" way - in other words, doesn't impinge on their beliefs more than is necessary to achieve the goal.

At first I feared this means the Court decided providing contraceptive coverage wasn't an important enough state interest, but that's not the case. Rather than saying that providing contraceptive coverage isn't a valid state interest, they said that it can be achieved in a different way: Either the government could make insurance companies pay for the contraceptive coverage for employees of companies who sought an exemption, or the government could just pay for that contraceptive coverage directly. Doing either of those would have the full desired effect: Every health insurance plan would cover contraceptives. Since the government can achieve this goal without requiring these companies to pay for it, that means under the RFRA that these companies cannot be required to pay for it.

In that sense, it's a "narrow" decision, and may be easily fixable. The Obama administration already offered a deal to churches and religious nonprofits that sounds like what the court said it could do legally for companies like Hobby Lobby, so presumably they can expand that deal to include these companies. (There's another court case in the works challenging even that, so we'll see...*)

Here's what's fucked up:

1. That anyone would claim a religious objection to contraception seems like a ridiculous anachronism in the 21st century US. It wouldn't be happening if we didn't still have an awful lot of devaluing of women in our culture.

2. Unlike the peyote case, where someone was being penalized for participating in a religious ritual, this case isn't about the actual practice of religion. It's about employees choosing to use their compensation in a way the employer objects to; the employer isn't actually doing so. This seems crazy to me. Compensation for a job is money or other financial value given to the employee, which they can then choose to use however they want. Morally and logically, this seems no different from letting an employer tell you what you can't spend your wages/salary on!

... but here's the worst part:

3. When the RFRA was passed in response to the peyote case, the hubbub was about people and their right to practice their religion. Now the Supreme Court has decided that some corporations can also have religious beliefs, and thus have the same rights under the law. For-profit corporations can have religious faith!!

The whole point of incorporating is to shield the individuals who run the corporations and/or own it from legal liability and financial risk from what the corporation does. Yet somehow the Supreme Court thinks that separation between the individuals and corporations doesn't always apply in the other direction when it comes to religious beliefs.

So... we can get contraceptive coverage back, probably, without even needing Congress (and we certainly could with an act of Congress). But this ongoing trend of the Supreme Court giving corporations more and more rights and benefits that were intended just for actual people is going to be much harder to reverse.

Edit: Move to Amend is the coalition trying to reverse this trend of excessive corporate rights. You could sign their petition and join their email list.

Edit2: I really like this blog post, which makes some of the same points, and gives more of a legal analysis (in an easy to read manner).

*Edit3: Supreme Court is indeed signalling, in that second case, that they may throw a wrench into the workaround: Wheaton College injunction: The Supreme Court just sneakily reversed itself on Hobby Lobby

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