On Monday, the Supreme Court struck a blow against the efforts of the Obama administration to ensure that everyone has access to the preventive care they need.
In Burwell v. Hobby Lobby Stores, the Court considered whether the religious beliefs of employers may trump the health-care needs of their employees and whether employers should be allowed to refuse access for their employees to comprehensive preventive health care that includes access to contraception. In a 5-4 decision, the Supreme Court ruled that closely held corporations cannot be required to provide contraception coverage. This means that corporations with a small number (five or fewer) of majority shareholders will be exempt from the birth control benefit in the Affordable Care Act and therefore will not be required to offer insurance plans that provide coverage for birth control if it conflicts with their religious beliefs to do so.
This is significant since closely held corporations make up about 90 percent of all corporations in the country, and comprise a majority of private-sector employers.
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As other commentators have pointed out, in addition to directly harming women, the fallout from this case also has the potential to harm lesbian, gay, bisexual, and transgender (LGBT) people in many ways. Some health-care providers and other businesses have previously attempted to use religious liberty arguments to justify discrimination against LGBT employees and consumers—including arguing that businesses have a constitutional right to deny services to LGBT people based on the business owner’s religious beliefs. Across the country, anti-LGBT organizations are pushing state and local legislatures to create unprecedented religious exemptions to anti-discrimination laws—sometimes for all protected categories, and sometimes just for laws that prohibit discrimination based on sexual orientation and gender identity. And every day, LGBT people already face significant—and, in the case of transgender people in particular, often extreme—discrimination in accessing equal health care.
In light of this already-oppressive context, Monday’s ruling is a cause for grave concern, not only for women and LGBT people, but also for other vulnerable groups whose right to equal dignity and treatment in the workplace has been placed on shaky new ground.
To be sure, the Court stressed the “limited” scope of its ruling and expressly noted that anti-discrimination laws are not generally subject to challenge on religious grounds. We should take the Court at its word and vigilantly monitor and resist any attempt to apply the decision more broadly. But there is no doubt that with the stroke of a pen, the Court has dramatically expanded the scope of religious liberty, extending it for the first time to for-profit corporations, and dramatically altered the longstanding principle that appeals to religious liberty can never be used to justify harms to third parties. These developments, as Justice Ruth Bader Ginsburg’s dissent rightly pointed out, are “startling” and “radical,” and they betray a shocking disregard for the need to ensure the equality and full participation of women, LGBT people, and other vulnerable minorities in our society. Those who say that employees who do not like it can simply “find another job” have clearly never struggled to find work, or been discriminated against on the basis of characteristics like race, gender, national origin, disability, sexual orientation, or gender identity.
Moreover, the majority of Americans believe that birth control should be fully covered under our health-care plans, despite any religious objections of employers. Monday’s ruling goes against that majority view, and it means that in most cases, bosses, not employees or their health-care providers, will get to decide which birth control methods employees are able to use. Like most medicines, different types of birth control work differently for every person. However, despite a doctor’s recommendations for which birth control may be best, many people could now be restricted to a limited subset of covered birth control options, and some may not receive coverage for birth control at all, depending on their employer’s corporate structure.
In addition to being a major blow to women, the decision is harmful for LGBT people who also need access to birth control, and who are more likely to struggle financially. Birth control is cost prohibitive for many people. Co-pays for birth control can cost up to $50 per month. For someone struggling to make ends meet, $50 may mean the difference between being able to have enough food for their family or put gas in their car to get to work. When the cost of preventive care is too high, people are forced to go without the health care they need.
The paramount importance of individual control over our personal reproductive and sexual lives and choices has precedent in prior Supreme Court rulings. It is truly shameful that this precedent was ignored. However, the community of people who believe in health care as a basic human right is strong in America. We will continue to fight back against this ruling, and we will strive to create a society where no one will be denied access to care that is best for them. We hope that employers across the country will make the right decision to protect employee access to the full range of health-care choices.