U.S. Supreme Court Hears Ultimate Culture War Case
By Mary Alice Miller
This week the Supreme Court of the United States heard arguments from lawyers for two privately owned companies – Hobby Lobby, a chain of 560 arts and crafts stores, and Conestoga Wood Specialties, a smaller chain of cabinetmakers run by Mennonites – who state they should be exempt from the Affordable Care Act’s mandate to include birth control in insurance plans for employees. The Affordable Care Act, which covers a wide variety of primary preventative care services without a co-pay, including reproductive health products and services, provides exemptions for religious institutions, like churches, but not for privately held for-profit businesses.
Hobby Lobby, founded by a family of evangelical Pentecostals four decades ago, has 13,000 employees and a net worth of $5 billion. Hobby Lobby offered health insurance covering the full range of comprehensive contraception services to its employees… until a nonprofit law firm that specializes in religious liberty contacted the company and asked if it wanted to challenge the Affordable Care Act’s contraception mandate. Hobby Lobby provides coverage for several forms of reproductive services including the Pill and in vitro fertilization, but now balks at mandated employer insurance coverage for Plan B, Ella (morning-after contraception) and intrauterine devices (IUD) which Hobby Lobby patriarch David Green calls “abortifacients”, or abortion-inducing products.
(Ironically, Hobby Lobby sells products made in China where the “one child” rule leads to instances of forced abortion but doing business with China does not seem to violate Hobby Lobby’s religious beliefs.)
The owners of Hobby Lobby believe that as a secular, for-profit corporation it has a “religious freedom” right to impose their religious views on its employees, even if a secular for-profit corporation cannot pray, hold devotion to any particular god or engage in religious exercise.
The attention-grabbing Hobby Lobby case is but one skirmish in a culture war based upon 2nd century BCE pre-science ideology and opposition to reproductive rights deeply rooted in misogyny.
Hobby Lobby’s contention that Plan B, Ella and IUDs cause abortion is not based in scientific fact. The consensus of medical experts including the Guttmaker Institute, Physicians for Reproductive Rights and the International Federation of Gynecology and Obstetrics agree that evidence-based medicine has found that Plan B does not cause abortion, rather, it prevents ovulation from occurring. In fact, Plan B does not prevent implantation as evidenced by the numbers of women who were ovulating when they took it and then became pregnant. IUDs work essentially like spermicides by interfering with sperm mobility and damaging sperm so that they are prevented from merging with an egg.
Never mind that the full range of reproductive products and services are not just used to
prevent pregnancy, or in the case of IVF, promote pregnancy. Reproductive health care treats endometriosis, ovarian cysts, pelvic inflammatory disease, fibroid tumors of the uterus, heavy bleeding and irregular menstrual cycles.
But religious zealots believe they have the right to restrict women from accessing the full spectrum of reproductive options because the “personhood” of an unfertilized egg or an unimplanted fertilized egg has more rights to life than the woman who would be host.
The attacks on abortion after Roe v. Wade that found a pregnant woman has a right to privacy in her reproductive decisions until a fetus is viable at about 24 weeks has morphed into an all-out war on birth control.
Because those who claim they have deeply held religious convictions pretend that the sole purpose of sexual relations is reproduction.
The absurdity of this argument can be found embedded within the more than 50 (out of a total of 84) friend-of-the-court briefs submitted to the Supreme Court in support of Hobby Lobby.
One recurring argument is that birth control demeans women by impeding a woman’s ability to enter into and maintain marital relations, as if a wife’s use of birth control would repulse her husband. Religious zealots also claim that birth control causes marital infidelity and a general decrease in moral standards. Of course, there is no correlation between birth control usage and marriage/divorce rates. The morality police are also silent on male masturbation and use of health insurance coverage for Viagra, penis pumps and testosterone pills and creams for non-reproductive activities. And though they believe that each sex act is solely for procreation, they are silent as to whether a menopausal wife and her aging husband should continue to have sex that will not lead to pregnancy.
Religious persecution against women’s reproductive rights has escalated since 2010 when Progressives, who voted for Obama in 2008, stayed home in the redistricting year of mid-terms, allowing conservatives to gerrymander state districts and gain legislative control all across the country. Rather than build this country and expand the economy, conservatives chose to legislate hundreds of bills designed to control women’s bodies to draconian effect.
The number of state and federal bills alleging to protect the “personhood” (of fertilized, unimplanted eggs, not women) has escalated since 2010.
The Journal of Health Politics, Policy and Law found from 1973 to 2005 more than 400 cases of “arrests and forced interventions on pregnant women who miscarried or were perceived as risking harm to fertilized eggs, embryos or fetuses.” African-American women are overrepresented among those who have been arrested or subjected to equivalent deprivations of liberty including hospital-based incarceration.
Since 2005, there have been increasing numbers of news reports of involuntary incarceration of women who chose to give birth at home and pregnant women who voluntarily seek treatment for substance abuse. Women who have miscarried or gave birth to a stillborn have been charged with murder even though 80% of embryos do not implant so early that many women didn’t even know they were pregnant. And of those further along, genetic abnormalities (half from egg and half from sperm) can cause miscarriages and stillbirths at no fault to the pregnant woman.
In addition, because the rights and safety of women are not important to those who discriminate against women under the guise of religious liberty, 31 states allow a woman’s rapist to sue for visitation and child custody under the guise of “family values”, which is just one step away from Sharia law in countries such as Morocco that under law encourage rapists to forcibly marry their victim in order to avoid prosecution.
Religious persecution of women’s basic bodily autonomy can have broad implications for men, too.
If the Supreme Court decides that the owner of a secular, for-profit corporation can impose their religious views on their employees, what would stop a Christian Scientist business owner from arguing against offering insurance-based psychiatric services or a Jehovah’s Witnesses corporation owner from denying blood transfusions or antibiotics to employees? What about vaccinations or anesthesia?
Noting that if corporations could object to the wide variety of medical treatments that some religious groups object to, Justice Elena Kagan said in oral arguments that Hobby Lobby’s lawyer’s argument would turn the Religious Freedom Restoration Act (RFRA) into something that would place “the entire U.S. Code” under high constitutional scrutiny for possible burdens to corporate religious rights. The effect, Kagan suggested, would allow companies to object on religious grounds to laws on sex discrimination, minimum wage, family leave and child labor.
Justice Ruth Bader Ginsburg said that Congress might not have generated bipartisan support for enacting RFRA if it thought the legislation would be used to confer religious rights to corporations.
“How does a corporation exercise religion?” Justice Sonia Sotomayor asked. Sotomayor questioned how courts are supposed to know whether a corporation holds a particular religious belief, and what happens to the minority members or shareholders of a corporation who may not share the majority’s belief. When Hobby Lobby’s counsel answered that would depend whether a corporation was being sincere in asserting religious beliefs, Sotomayor responded that the court has “resisted in all our exercise jurisprudence to measure the depth of someone’s religious beliefs.”
The court’s decision is expected in June.