The Supreme Court heard arguments about the birth control provision of the Affordable Care Act six years ago in Burwell v. Hobby Lobby. Though it decided that case in favor of some companies that object on religious grounds to providing contraception coverage in their employee health plans, the issue is still not settled. Last week, the court heard yet another set of arguments about whether employers should be able to opt out of the mandate to provide contraceptive coverage to employees.
The first time around, a narrow selection of employers was allowed exemptions to the ACA with the help of a workaround that would shift coverage to insurers instead of employers. In 2017, though, the Trump administration sought to broaden the exemptions to a much wider range of companies, even publicly traded ones, thereby potentially shutting off birth control coverage for more women — over 100,000 by some estimates.
This week’s case was prompted by a suit brought by Pennsylvania Attorney General Josh Shapiro and joined by New Jersey Attorney General Gurbir S. Grewal to block those broader exemptions to any company that says it has religious or moral objections to coverage birth control for their workers.
A lot has changed in six years. The justices on the court now include two conservative Trump appointees whose presence is likely to add mud to already muddy waters.
Also different: a global pandemic that has thrown many people out of work – and, tragically, out of health care. This is no time to be further restricting health coverage for those fortunate enough to still have jobs.
The current health crisis has also provided a sharp new irony to arguments in favor of removing a woman’s reproductive rights and freedoms against the backdrop of anti-shutdown protesters carrying guns and “My Body, My Choice” signs. (Maybe women wouldn’t still have to march on behalf of reproductive rights if they had been carrying rifles during their earlier protests.)
The freedom being debated in the Supreme Court has centered on presumed governmental interference with religious freedoms — not of individuals, but of companies that find it offensive to provide contraception to women.
What’s not new: how tiresome it is to still be debating a woman’s right to control whether or how many times she bears children — and the dismissal of the consequences that lack of choice creates.
Justice Ruth Bader Ginsberg, who heard arguments from a hospital bed, further argued: “You have just tossed entirely to the wind what Congress thought was essential, that is that women be provided these services with no hassles, no cost to them.… You are shifting the employer’s religious beliefs, the cost of that, onto these employees who do not share those religious beliefs.”