What Clarence Thomas and Antonin Scalia don't understand about contraception

An IUD is a month's pay for a woman earning minimum wage. The legal argument against Hobby Lobby is a human one

Published July 2, 2014 6:34PM (EDT)

Supreme Court Justices Antonin Scalia, Samuel Alito, John Roberts, Clarence Thomas, Anthony Kennedy                              (AP/Pablo Martinez Monsivais)
Supreme Court Justices Antonin Scalia, Samuel Alito, John Roberts, Clarence Thomas, Anthony Kennedy (AP/Pablo Martinez Monsivais)

This article originally appeared on SCOTUSblog

When for-profit employers Hobby Lobby and Conestoga Wood challenge the federal government’s guarantee of contraceptive coverage, Justices are called upon to understand (one might say empathize with) experiences and life circumstances beyond their own.  At issue in this case is the plight of working women struggling from paycheck to paycheck to provide their families with basic necessities, including contraception necessary to prevent unintended pregnancy and preserve health.  As Justice Ruth Bader Ginsburg noted in dissent, the cost of “an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”

The five-Justice majority opinion earned a failing grade on this as well as other aspects of its ruling, which, absent response from Congress or the executive branch, allows employers, on the basis of personal religious objections to contraception, to deprive their employees and covered family members of crucial health coverage provided under federal law and earned in the course of their employment.

Notions of empathy and consequences, of course, do not alone provide a basis for judicial resolution, and appeals to empathy have sparked recent political controversy.  Equally clear, the ability of Justices to appreciate the implications for affected parties often is vital to the proper resolution of legal issues – and in fact influences judicial outcomes.  Just last week, the Court’s nine-zero ruling barring warrantless searches of cellphones incident to an arrest eloquently detailed the practical implications for cellphone owners, prompting Linda Greenhouse to observe that “The Supreme Court Justices Have Cell Phones, Too.”  No opinion in McCullen v. Coakley similarly described the harms suffered by women seeking reproductive health care due to altercations with abortion protestors, no doubt in part due to efforts to achieve some consensus on the difficult First Amendment issues, all interestingly discussed by Walter DellingerDahlia Lithwick, and Richard Posner in postings on Slate’s “Breakfast Club.”

In Burwell v. Hobby Lobby and Conestoga Wood Specialties v. Burwell, the five-Justice majority opinion fails to address the real-world consequences for women and their families of allowing employers’ religious objections essentially to trump women’s interest in their right to health insurance coverage for contraception on an equal basis with other preventive health care.  Justice Ginsburg’s dissent aptly suggests this may reflect less a lack of understanding of the parties’ perspectives than a choice of which party is considered.  In footnote seventeen she writes to “part ways” with Justice Kennedy’s choice, in his concurring opinion, of the “context relevant here”:  “He sees it as the employers’ ‘exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations.’  I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health hazards employees who do not subscribe to their employers’ religious beliefs.”

Justice Kennedy’s short concurrence actually is more solicitous of women’s harm than the majority opinion he joins.  In the majority opinion, the Court considers at length (as it should) the alleged harm to the directors of corporations, but not so the effect on employees of those corporations of interpreting RFRA in this expansive fashion, without precedent, to protect for-profit employers’ right to act on their religious views in the workplace.  In order to reassure that Justice Ginsburg was wrong in opening her dissent by characterizing the case as “a decision of startling breadth,” the Court suggests that perhaps access to contraception is different than other employee interests.  This fails to reassure either with regard to equal treatment for women’s reproductive health care, or for the many other issues that now must be adjudicated case by case under a very demanding standard.

Much more can and should be said about the threats posed by the decision to other vital interests of equality and liberty.  To focus in this post on the consequences for contraception, the Court simply assumes without deciding that the government’s interest is compelling and holds, even so, the government only may pursue that interest using a less restrictive alternative that does not compel the employers to provide contraceptive coverage.  So what are those immediate consequences for women and their families?

As damaging as the Court’s ruling is for affected employees and their families, it must first be noted that, for the vast majority of covered employees and their families in the U.S., insurance coverage for contraception still is legally guaranteed.  The federal law at issue requires covered employers that provide health insurance as a benefit of employment to include all contraceptive methods for women without cost-sharing.  That remains law.  Moreover, even those employers with strongly held personal religious objections to contraception may choose to comply with the coverage guarantee and allow their employees to make their own contraceptive care decisions, rather than seek to impose their personal religious views.

With regard to those women whose bosses – or bosses of their spouses or parents, if they are the primary insured party – will rely on this ruling to deny them contraceptive coverage:  the Court’s holding that the government must pursue less restrictive alternatives for providing contraception is to my mind plainly flawed, but those alternatives now must be pursued.  Here Justice Kennedy’s concurrence, and critical vote to form the majority, complicates analysis.  The majority opinion clearly states that it is not deciding the legality of the very accommodation it holds out as a less restrictive alternative – a very odd position, but perhaps best explained by the apparent comfort that the four other Justices appear to have with the breadth of the ruling on other grounds.  Not so Justice Kennedy, who praises “the respectful and powerful dissent” and clearly seeks in his short concurrence to narrow the majority’s reach to require as a less restrictive alternative the accommodation the administration has devised for certain religious nonprofits. Justice Kennedy does not opine directly on the fate of that accommodation under RFRA, but his opinion would be utterly bizarre if he in fact harbors concerns about an extension here to certain for-profit employers of that accommodation designed for certain religious nonprofits.

A more complete understanding of the contraceptive coverage guarantee’s importance to women and families should help in pursuing whatever alternatives may be possible as a legal and political matter – just as it should have helped the Court reach a different outcome.  Some of what follows reflects anamicus brief I coauthored with Walter Dellinger and other lawyers at O’Melveny & Myers on behalf of the Guttmacher Institute (a prominent think tank focused on sexuality and reproductive health and rights) and public health expert Sara Rosenbaum.

Virtually all women use contraception at some point in their lives.  Some twist this fact to argue against the need for contraceptive coverage.  As a student once said to me, relating a common and understandable, but dangerous, misconception, “Why can’t women just purchase condoms at the drug store?”

In fact, as the data and our lived lives make clear, avoiding unintended pregnancy is extremely difficult during the course of our long reproductive lives.  Extensive evidence supported the government’s adoption of the contraceptive coverage guarantee as a means of addressing that difficulty and meeting a compelling need.

The typical American woman wishing to have only two children spends thirty years, three-quarters of her reproductive life, seeking to avoid unintended pregnancy.   Half of all pregnancies in the United States (more than three million a year) are unintended.  More than half of American women will experience an unintended pregnancy.  Forty percent of unintended pregnancies end in abortion.  Three in ten American women will have an abortion at some point in their lives.  Reducing unintended pregnancy through the contraceptive coverage guarantee undeniably will reduce the need for abortion.

Women choose among available methods of contraception based on a range and a combination of factors that may change over the course of their lives, including their particular life circumstances, health needs, economic resources, and religious and other beliefs.  Contraceptive methods vary dramatically in their effectiveness, which provides another contributing factor in women’s decisions.  Hormonal IUDs can be forty-five times more effective than oral contraceptives and ninety times more effective than male condoms in preventing pregnancy, based on typical use.  Finally, cost concerns often drive women away from a preferred method to less effective methods.  Almost one-third of women report that they would change their choice of contraceptive method if cost were not a factor.  That’s tens of millions of women.

The Court’s ruling means that for a woman adversely affected, her boss’s religious beliefs will, at least for a time, be on that list of contributing factors that determine her choice of method.  Especially for women of limited economic means – like the full-time minimum wage worker to whom Justice Ginsburg referred who cannot possibly afford a month’s salary for an IUD – the religious views of their bosses (or the bosses of their spouse or parent) may now trump their own religious beliefs, as well as needs that flow from their own health, family, and life circumstances.  Examples of disparate religious views would come from all sides.  To take just one:  we can imagine a devoutly religious, fervently anti-abortion employee who would like an IUD to minimize the chance of an unintended pregnancy but cannot afford one and will experience that unintended pregnancy and ensuing consequences because of a boss’s personal religious opposition, despite a national commitment to providing such services.

Justice Ginsburg’s hypothetical woman does not sit on the U.S. Supreme Court.  Justices and their families, one expects, will not struggle with the choice between an IUD or new shoes and a winter coat for their children.  Or confront the inability to purchase any of the above.  But thanks to the Court’s ruling, more women are likely to experience such harms – at least unless and until the other branches of our government act to protect women from the imposition of their bosses’ religious beliefs.

By Dawn Johnsen

Dawn Johnsen is a professor of law at Indiana University School of Law-Bloomington.

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