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Fluke: The Hobby Lobby case is an attack on women

By Sandra Fluke

Special to The Washington Post

First Published Jul 01 2014 06:03 am • Last Updated Jul 01 2014 02:57 pm

On Monday, the Supreme Court ruled in the nationally followed Hobby Lobby case. The for-profit corporations that brought these cases to the Supreme Court — a craft store and a cabinet manufacturer — argued that the corporations’ religious convictions should excuse them from compensating their employees through the comprehensive health insurance required by law. Specifically, these private employers sought to exclude insurance coverage of several forms of birth control because, contrary to medical and scientific evidence, the corporations’ owners believe some birth control causes abortions.

The Affordable Care Act already includes special arrangements for houses of worship and religious nonprofits, like schools and hospitals. Houses of worship are exempted. Employees of religious nonprofits receive their birth control coverage directly from their insurance company. The nonprofit employer is not required to pay or be involved in any way.

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Monday’s cases weren’t about those types of religious organizations. They were about privately owned, closely held, for-profit corporations. Monday, the court ruled that such corporations have religious rights under federal statute, just as individuals do. Corporations are not people. Corporations cannot have religious views. And this decision sends us in a dangerous direction.

Some imagine closely held corporations as family-run small business. Actually, closely held corporations make up more than 90 percent of the businesses in this country. They employ 52 percent of the labor force, and the 224 largest closely held corporations had combined revenues of $1.6 trillion in 2013. Some of these companies include Dell, Toys ‘R’ Us, Heinz, Dole Foods, Petco, Stater Bros and yes, even Koch Industries. Under Monday’s decision, employees (and their dependents) at all of those corporations may lose their insurance coverage of birth control if their employers choose to deny it.

The court framed its decision as one of limited scope, applying it only to the contraception requirement and basing it upon a specific federal statute, the Religious Freedom Restoration Act, rather than the First Amendment. However, as Justice Ruth Bader Ginsberg convincingly demonstrates in her dissent, this decision opens the door for future cases with numerous far-reaching implications. As the court adds to its precedent, it increases the likelihood of corporations of all kinds being granted additional rights previously reserved only for individuals.

In the area of health care alone, the court’s decision allows companies to deny coverage of numerous health-care services. The majority opinion barely addresses this concern. Why is birth control — an uncontroversial form of care used by an astonishing number of women — different from blood transfusions and vaccines, which many individuals have religious objections to? The fact is, it’s not. This case sets a dangerous precedent and can be used in the future to go far past birth control.

The court cited the government’s ability to meet women’s need for affordable access to contraception in other ways, specifically pointing to government provision of birth control as an option. But in the current reproductive rights environment, that will never happen. Opponents of reproductive rights are trying to limit access to comprehensive women’s health care from all directions. At the federal level, they have attempted to defund Title X, which provides funding for family planning for our poorest sisters in community clinics. At the state level, in Texas for example, there are attacks on government money for contraception and clinics that offer abortion care. There is a movement to prohibit government support not only for abortion services — which, with a few exceptions, has existed for three decades — but also for emergency contraception and certain forms of birth control. Even a woman’s ability to pay for her own coverage is under attack: Some states’ exchanges and the federal exchange are prohibited from providing insurance that covers abortion care.

In sum, the anti-choice movement wants to limit not just affordable access, but all access to abortion and birth control, whether it is backed by the government, by employers or purchased by private citizens. It is an attack at all levels, and Monday’s decision is just another success in these efforts.

The task now is to determine how best to meet the reproductive health-care needs of millions of women who could be affected by this decision. The court says that the White House could expand the program for employees of religiously affiliated nonprofits to these employees as well. That won’t undo the long-term damage that the court began Monday, but it will go a long way in ensuring health-care access for millions of women. The Obama administration should act.

Sandra Fluke is a social justice attorney who testified before Congress in 2012 about the importance of contraception coverage in health insurance. She is currently running for the California State Senate.

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