Three Reasons to Uphold the Contraception Mandate That Don’t Involve Birth Control


Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

The Supreme Court will hear arguments next month in the two for-profit, corporate challenges to the contraception mandate in the Affordable Care Act, Hobby Lobby and Conestoga Wood Specialties.

While much of the coverage of the cases has centered on the challengers’ claims that the mandate infringes on their purported corporate religious rights, there is a lot more at stake in both these cases than the question of whether or not corporations are people under the Religious Freedom Restoration Act and, if so, whether they have First Amendment free exercise rights. Here are three other important arguments for upholding the mandate and rejecting these challenges to it that have nothing to do with contraception.

1. There’s a long, failed history of opposition to civil rights laws in the name of religious liberty.

In an amicus brief filed by the American Civil Liberties Union (ACLU) and the NAACP, the civil rights groups draw the Supreme Court’s attention to the long history of attempts to invoke religion, and the Free Exercise clause of the First Amendment specifically, to try and defeat anti-discrimination laws or to avoid complying with them. Conservatives have invoked their religious beliefs to try and justify everything from racial segregation in business to refusing to pay women the same as men. Thankfully, since the civil rights movement, federal courts have consistently rejected those attempts. The contraception mandate, the ACLU and NAACP argue, addresses one of the last holdouts of discrimination in the workplace: sex disparities in the cost of health care, and the historical exclusion of coverage for health care unique to women.

Importantly, the ACLU and NAACP brief places the Affordable Care Act alongside another historic piece of federal civil rights legislation, Title VII of the Civil Rights Act, driving home the point that first and foremost the contraception mandate is about regulating employment benefits. In addition to furthering goals of economic equality and empowerment, the mandate helps dismantle outdated sex stereotypes by offering women the tools to decide whether and when to become mothers and rejecting cultural beliefs that women should either accept pregnancy or refrain from non-procreative sex. By tying these beliefs regarding the status and role of women in society to the manner in which the government regulates the workplace through anti-discrimination laws, the NAACP and ACLU drive home that women’s economic equality depends on dismantling Christian patriarchal structures, not further reinforcing them.

2. A ruling for Hobby Lobby would open the doors for broader workplace discrimination in the future.

With the ACLU and NAACP historical arguments on anti-civil rights forces trying to use the First Amendment to defeat civil rights gains as a backdrop, the Lambda Legal Defense and Education Fund brief brings that argument to the present day and highlights the impact a ruling in favor of the challengers would have for the LGBT community as well as those living with HIV. Not surprisingly, the impact would be devastating.

Never before has the Supreme Court allowed a commercial business to ignore a regulation simply because it offends the religious beliefs of the business owners, the fund notes. While there are some laws already in place to protect LGBT persons and those with HIV from discrimination in the employment context, a ruling on behalf of the challengers would be an open invitation to re-litigate the issue as religious conservatives have long tried to use religious objections to justify discrimination on the basis of sex, sexual orientation, or disability.

In fact, we’re already seeing that very thing play out, as conservative lawmakers in places like Kansas and Arizona consider legislation that would affirmatively grant the right of business owners to discriminate against LGBT persons on the basis of religious objection. And in New Mexico, a lawsuit against an Albuquerque couple who operate a commercial photography business and refused to photograph same-sex couples on the basis of their religious objection has already made its way before the Roberts Court, with the business owners asking the Supreme Court to grant them an exemption based on their religious objections to the state’s public accommodations law, which makes refusing service to anyone on the basis of their sex or sexual orientation illegal.

3. Centuries of corporate law will go up in smoke.

Sure, compared to civil rights history and law, corporate law is undeniably drier. But as a group of law professors argue, it is also undeniably at risk of being upended should the Roberts Court accept the basic proposition that corporations can take on the beliefs of their owners. The corporate and criminal law professors detail many key concepts of corporate law at risk, most notably the fact that shareholders/owners rely on the corporation’s separate existence from its shareholders/owners to shield them from personal liability. This corporate shield encourages investment and innovation, which helps markets generally, meaning that ultimately businesses have more to lose then gain in siding with Hobby Lobby.

Should the Court side with the Hobby Lobby and Conestoga plaintiffs, then it is practically inviting religious objections to any federal regulation. In fact, similar to the religious objections bubbling up in response to marriage equality, this anti-regulation for the sake of it argument is already apparent in the for-profit challenges to the contraception mandate. Take, for example, the Eden Foods case, in which the owner, in an interview with Salon, said he didn’t object to offering birth control to his employees so much as he objected to the federal government telling him to do anything. A broad ruling in favor of the plaintiffs could take that attitude and use it to challenge everything from tax laws to environmental protections—which is, of course, exactly the point.

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  • xuinkrbin

    Yeah, no. Argument #1 is a classic example of what is known as the “appeal to tradition fallacy”. Even if it were not, it ignores the fact the Religious Freedom Restoration Act (RFRA) explicitly states it applies to all laws enacted before it and all laws which come after unless the congress says otherwise.

    Argument #2 is a classic example of a “slippery slope fallacy”. RFRA specifically requires such exemptions be determined on a case by case basis. Any wholesale rush to “broader workplace discrimination”, if it were to ever happen, would result in clogged courts, immediately preventing such a rush. Plus, the claim states are trying to allow such ignores the fact federal jurisdiction and state jurisdiction are two separate areas. A federally granted exemption does not and cannot result in a state exemption. Cf., Boerne v. Flores.

    Argument #3 is another “appeal to tradition fallacy” and would be better suited to a time when the congress was attempting to enact RFRA. Alas, that time has passed. Additionally, both paragraphs of this argument fail to consider the fact federal regulations can withstand RFRA challenges if (a) the congress explicitly exempts them or (b) the regulation does not substantially burden One’s free exercise of religion or is in pursuit of a compelling government interest AS APPLIED TO THE CHALLENGER while using the least restrictive means of advancing that compelling interest.

    Consequently, this argument is a scare tactic. Had People listened to me and pushed for single-Payer at the outset, We might at least have a public option which could offer such coverage for free in competition with other policies but no, We couldn’t do that; could We?

    • jruwaldt

      What you call an “appeal to tradition” is referred to in law as citing precedents. RFRA may supersede various other laws, but the Constitution supersedes all other laws, and, if the Supreme Court says RFRA doesn’t apply in this case, then it doesn’t.

    • fiona64

      A whole slew of people were pushing for single -payer … but the Repugnicans wouldn’t stand for that.

    • Jennifer Starr

      I liked the idea of single-payer. Unfortunately that didn’t happen.

  • Rabbi Dennis S. Ross

    Three excellent arguments. Thanks so much for this!