Discrimination Masquerading as Religious Liberty

Do for-profit business corporations have religious liberty rights? Do these rights extend as far as controlling your insurance compensation choices?

The Issue: Whether for-profit business corporations are entitled to an exemption under the Religious Freedom Restoration Act from the general requirement that employer health plans include coverage for contraceptive care.
The Affordable Care Act requires that employer health plans include coverage for preventive services and the federal government has issued regulations defining contraceptive care as one of the services that must be covered.

On Tuesday, March 24th, the Supreme Court heard oral arguments in the challenges to the Affordable Care Act’s requirement that businesses provide their female employees with health insurance that includes access to contraceptives. Two business owners say their religious principles would be violated if they had to provide female employees with cost-free insurance coverage for all contraceptives.

David and Barbara Green, evangelical Christian owners of the Hobby Lobby, are challenging the contraceptive requirement under the Affordable Care Act. They are objecting to “emergency contraception”, a form of birth control they say amounts to abortion which violates the corporation’s religious liberty.

The Greens contend that the ACA’s requirement that health insurance plans cover contraception will force them to choose between violating their religious beliefs or suffer huge financial penalties for violating the law. They don’t object to covering all contraception, only the emergency contraceptive pills Plan B and Ella and intrauterine devices (IUDs), which they believe are abortifacients. However, the Greens aren’t the ones who would be providing the health insurance with contraceptive coverage; their corporation, Hobby Lobby, would be.

Read the amicus brief submitted by the American Civil Liberties Union.

The full U.S. Court of Appeals for the 10th Circuit in Denver said forcing the company to comply with the contraceptive mandate would violate the Religious Freedom Restoration Act, a 1993 law providing special protections for religious expression.
The 1993 act forbids federal laws that impose a “substantial burden” on the exercise of religion unless there is a “compelling governmental interest” and the measure is the least restrictive means of achieving that goal.

Article by civil rights leader Julian Bond, chairman emeritus of the NAACP and a professor at American University, in the Huffington Post Blog.

Adam Sonfield, a senior public policy associate at the Guttmacher Institute, explained to Think Progress: “It’s an incredible devaluing of the insurance that you as an employee work for. This is telling you that you can’t use your compensation – your own benefits that you have earned – in a way that your boss objects to. And that is a frightening road for us to be going down, as a society” (3/19/14).

Sen. Patty Murray (D-Wash.) agrees that the issue is one of equality. “Allowing a woman’s boss to call the shots about her access to birth control should be inconceivable to all Americans in this day and age. That is a slippery slope that could lead to bosses dictating everything from an employee’s ability to access HIV treatment to their ability to vaccinate their children.”

Supreme Court Justice Elena Kagan commented, “One religious group could opt out of this, and another religious group could opt out of that, and everything would be piecemeal, and nothing would be uniform”. Justice Sonia Sotomayor questioned whether other employers with religious objections would be able to opt out of covering other medical procedures, such as vaccines or blood transfusions.

“There is not a single case which says that a for-profit enterprise cannot make a freedom-of-religion claim,” Justice Antonin Scalia said.

Kagan, Ginsburg, Sotomeyor

According to Margaux J. Hall, a Center for Reproductive Rights Fellow at Columbia Law School:   “Why does health insurance actually belong to the employee? Because the employee pays for it — directly and indirectly. Though both employees and employers generally co-finance insurance premiums (in 2012, employees reportedly paid an average of 18 percent of individual plan premium costs, and 39 percent of family plan premium costs), employees functionally fund 100 percent of premium payments. In other words, employers’ health insurance premium contributions are not philanthropic investments — they are part of an employee’s net compensation package. There is a clear wage-benefit tradeoff at work in the case of employment-based health insurance. Economic research shows that employers make fewer investments in real wage increases when they increase their health insurance premium contributions. Seen this way, employers should not be permitted to spend employees’ remuneration in ways that subvert those employees’ interests.”

Everyone has the right to his or her religious beliefs, but those beliefs should not be used to take away a benefit from someone else or to discriminate against others. This is what is at stake in this case. The contraception rule was designed to ensure women’s equality by eliminating the disparities in health care costs between men and women, and to ensure women have the ability to make decisions about whether and when to become parents, which in turns allow them to participate equally in society.

Birth control decisions should be up to a woman and her doctor and no one should be able to supersede a woman’s right to choose her method of contraception. HIPAA laws guarantee our right to privacy in medical issues. Don’t we value privacy in matters of medical care?

There are sects in Hinduism that believe life is sacred and no living thing should be killed, including insects. Although Hindu restaurateurs probably use many preventative measures to keep their commercial kitchens pest-free, I doubt they would be in business long if they allowed the insects that came in the kitchens to live. Vermin-free food establishments wouldn’t last long if they fought against health code laws that impose a “substantial burden” on the exercise of their religion.

I’m sure we can all think of other scenarios that would make exemptions for for-profit business under the Religious Freedom Restoration Act unfeasible. The SCOTUS is supposed to make a ruling in Hobby Lobby sometime in June 2014. I can’t wait to find out….

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About Tracy Encizo

Social Justice and Human Rights grad student at ASU.
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