When Hobby Lobby sued—and won—for a right to be exempted from the Affordable Care Act regulation requiring employee health-care plans to cover contraception without a copay, the official claim from both Hobby Lobby and its conservative defenders was that this was not an attempt to deprive women of contraception. No, the official argument was that it was simply an attempt by Hobby Lobby’s religious owners not to be party to behavior they consider immoral by “paying for” it.
Well now the Obama administration has created a workaround that more than satisfies the official claim that this isn’t about preventing contraception use; it’s just about not participating in it. All employers who have this oh-so-sincere belief, all they have to do is send in a letter formally declaring that contraception violates their religious doctrines, and they won’t have to pay for it. Instead, the insurance company will just pay directly. No big surprise here. But the supposed defenders of religious liberty are already outraged, because that’s never been what this is about. Rather, it’s about imposing anti-choice dogma on people who don’t agree with it.
If the actual concern was participation in behavior that violates religious principles, then the Obama administration’s new policy should more than address that. All that is required is a statement of principles. People make sincere statements of religious belief in order to get religious exemptions from laws all the time. Conscientious objectors to the draft, for instance, had to make such statements. It’s not considered a burden because there is no shame in expressing a belief you legitimately hold.
If, however, the “sincerely held” argument is a dishonest gambit to cover up for the real goal among much of the right—depriving women of contraception and asserting employer ownership over their private lives—then we can expect that conservatives will reject this new policy. After all, while it meets the stated demand of accommodating religious belief, it does not prevent women from getting affordable contraception outright.
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Anyone who has been watching the right become more overtly anti-contraception in recent years can probably guess what is happening: Conservatives are throwing a fit over this. “The government keeps digging the hole deeper,” Adèle Auxier Keim of the Becket Fund, which represented Hobby Lobby in its suit, told U.S. News and World Report. “The government still won’t give up on its quest to force nuns and other religious employers to distribute contraceptives.”
That rhetoric, unsurprisingly, is thoroughly and completely dishonest. First of all, no employer was ever once asked to “distribute contraceptives.” No bowls of Plan B are required at work. No IUD insertions at your desk. For a woman to get contraception, she has to use her insurance plan—the one belonging to her, not her employer—to cover it at a pharmacy. It doesn’t matter if the employer provided it: The employer never had a part in it, no more than if a woman uses her paycheck to purchase condoms.
But now the distance is even greater, since the contraception coverage from the objecting companies isn’t even coming from their employer-offered plans! On the contrary, they are given an opportunity to write a letter declaring how not involved they are. This is strictly between a woman, her doctor, and her insurance company, and the employer doesn’t have anything to do with it.
The Becket Fund is hardly the only source of discontent. The Washington Times, a conservative paper, went with the headline, “Obama skirts Supreme Court Hobby Lobby birth-control ruling,” a headline that only makes sense if you believe the purpose of the ruling was to deprive women of contraception instead of shield religious employers from participation. Patheos blogger Kathy Schiffer angrily railed, “There’s an ‘accommodation’ which ensures that all women, unless they work for a place of worship, will still get their [copay-free] birth control—even if their employers refuse to pay for it,” and whining about women having “uninhibited sex with no risk of conception.”
This is probably just the beginning of the backlash. After all, when similar rules were written for nonprofits, many of those employers sued anyway, trying to argue that admitting you have a belief can somehow violate that belief if it makes it easier for an employee to get contraception. That argument isn’t performing well in court. Just this week, the Tenth Circuit Court shut it down again, noting that being asked to clarify your beliefs in order to get an exception to a widespread law is not any kind of violation of your rights.
It’s obvious now that employers are trying to seize as much control as they legally can over their workers’ private lives by trying to put as many obstacles as they can between their employees and contraception use. Which is entirely consistent with the overall approach conservatives take on this issue, from pushing for mandatory ultrasounds for abortion to showing up at clinics to harass women. It’s all about stripping women of autonomy and privacy. These employers are just making a naked power grab, using the newness of the Affordable Care Act as an opportunity to inject themselves into a decision that isn’t theirs to make.
Even a popular talking point used to defend Hobby Lobby in the press exposes this privacy-invasion mentality. It was common for right-wing pundits to say that Hobby Lobby covers 16 out of the 20 forms of contraception approved by the FDA, suggesting that women should be grateful for such riches. Never mind that this talking point was simply wrong, as the Supreme Court decision allows employers who have a broader anti-contraception agenda to opt out of health plans that cover any of it. That talking point assumes that your employer should have the power to artificially limit your choices. Imagine if your boss told you that you were no longer “allowed” to use your paycheck to buy broccoli anymore, because he didn’t like it. If he defended himself by pointing out that he still allows you to buy squash and asparagus, that’s no defense at all. It still assumes that he should have final say over how you eat. This talking point was the same: It insidiously pushed the idea that your boss has any business whatsoever telling you what kind of medications to take.
Perhaps this temper tantrum over signing a letter will prove a bridge too far. It does make it impossible to uphold the myth that this was ever about “religious liberty.” For now, for-profit companies who object to contraception haven’t made any further moves. But do not be surprised if they do start suing to gain the ability to interfere with an employee’s right to get contraception coverage elsewhere. Because this was never about religious liberty, but about taking religious and reproductive freedom away from women.