It’s been just days since the Supreme Court granted religious exemption to Hobby Lobby and other closely held corporations, ruling that the insurance they provide their employees does not have to cover contraception, as stipulated by the Affordable Care Act (ACA), and already Justice Ruth Bader Ginsburg’s prophetic dissent is manifest.
Following a blistering and sometimes-sarcastic 35 pages of opposition, Ginsburg, perhaps now somewhat famously, concluded: “The Court, I fear, has ventured into a minefield.”
Indeed, it seems as though it has.
While President Obama vowed to restore the lost coverage to women, a host of other religious groups and institutions have decided not to wait around and see what kinds of new regulations might come into play.
According to the Becket Fund, the religious law firm that represented Hobby Lobby, there are already 49 pending federal cases in which for-profit companies have claimed “religious objections to the ACA and another 51 that involve nonprofit organizations.”
Additionally, the Supreme Court has ordered three appeals courts to reevaluate challenges made by companies that also objected to the contraception stipulation, but which objected to all contraceptive methods and not just the four addressed in the Hobby Lobby case.
In the official opinion of the court, delivering Justice Samuel Alito dismissed the possibility for a surge in challenges to ACA, saying “it seems unlikely” that large corporations “will often assert RFRA [Religious Freedom Restoration Act] claims” — an argument Ginburg said was proved untrue by the very case they were presiding over. And though the Court attempted to “cabin its language” to closely held corporations, she said “its logic extends to any size [company], public or private.”
While the Hobby Lobby case addressed just four of the 20 contraception methods included in the ACA — those the company incorrectly believes cause abortion — the ruling opens the possibility for employers to refuse to offer any kind of contraception.
The key question that remains for Ginsburg, and perhaps much of the public, is: “How does the Court divine which religious beliefs are worthy of accommodation, and which are not?”
The 1993 Religious Freedom Restoration Act (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
Would the Court provide exemptions for employers with religious objections to “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christians)?” Ginsburg’s dissent asked.
And the minefield the chief opposing Justice warned of does not just apply to the issue of contraception; rather, she said, it becomes an invitation for for-profit entities “to seek religion-based exemptions from regulations they deem offensive to their faith.” As a result, she added, employers might use the loophole to “cloak illegal discrimination as a religious practice.”
Already, a group of religious leaders have reportedly written a letter to President Obama, asking to be made exempt from a pending executive order that would not allow federal contractors to discriminate against LGBT people in hiring practices, according to the Atlantic.
But even within the confines of the “narrow decision” over reproductive rights, advocates have said the ruling is already presenting discriminatory challenges.
Though religious groups have argued that Hobby Lobby still allows for some forms of contraception, the reality of that is that those deemed acceptable are among the most expensive. The cost of the intrauterine device (IUD), for instance, is almost equivalent to a month’s full-time pay for a worker earning minimum wage, according to the Guttmacher Institute.
Generally, the cost of birth control pills for women who are uninsured can range from $9 to over $160 per month — depending on both the kind of pill and the seller. The kind of pill a woman uses depends largely on what her needs are and which contraceptive her body responds best to. Apart from preventing pregnancy, birth control is used to treat Endometriosis — a condition in which uterine-lining tissue begins to grow in other pelvic areas, and which can lead to severe pain, scarring and infertility — heavy, painful menstrual cycles and acne. The pill is also said to help reduce the risk of cancer.
More than 99 percent of women between the ages of 14 and 44 who have ever been sexually active have used some form of birth control at least once, the Guttmacher report says. About 62 percent of women of reproductive age currently use some form of contraception.
Eighty-nine percent of women living at zero to 149 percent of the poverty level use contraception. Use is also common among "women of all religious denominations." Eighty-nine percent of all Catholic women who are sexually active in some way and 90 percent of Protestants are currently using birth control. Ninety-nine percent of each have used some form of birth control at least once. Apart from pregnancy prevention, 58 percent of all women using contraception cite "noncontraceptive health benefits as reasons for using the method."
A map of the most commonly used brands of birth control in different cities across the country reveals that often, as is the case in New York City, the most commonly used pill costs over $90 per month for those without insurance coverage.