Contraceptive Coverage & the Supreme Court
The stately Lady Justice sits beneath the Supreme Court inscription: “EQUAL JUSTICE UNDER LAW.”
Advocates at the national family planning conference visited our elected officials this week. As I passed Lady Justice, I thought about the pending case on contraceptive insurance coverage under the Affordable Care Act (ACA). Much of the public is weary of this tedious and endless debate on women’s health and women’s rights. But if the court’s motto is not to become an epitaph for equality for women, individual constitutional rights in these most intimate and personal decisions must be upheld.
Several private for-profit corporations argue that bosses opposed to birth control methods for personal religious reasons should be permitted to deny all contraceptive coverage to their employees.
“Equal justice under law” promises that each person before the court will have impartial and evidence-based judgment. The scales of justice declare that evidence will be weighed.
First, the court must decide whether a for-profit corporation is even able to exercise religious liberty. An employee can claim religious rights, but it seems overreach to say that corporations with no religious purpose are able to deny equality of health care access to their employees to impose the religious beliefs of their owners.
Even if the court determines that for-profit corporations are able to exercise religious liberty rights, then it must say whether the requirement of the ACA is a substantial burden. Actuarial studies have shown that the cost of providing contraceptive coverage is less than $2.00 per employee per month. With many exceptions and alternatives available for providing contraceptive coverage, the cost of the benefit is not substantial.
The burden, even if substantial, can nonetheless be justified.In this situation, the compelling argument is that preventing unintended pregnancies and their outcomes, including impacts on women’s health, children in poverty, and even abortions, represent a national public health goal. These very corporations benefit from women participating fully in the work force including by reducing the substitution, replacement, and productivity costs of family medical leave.
Contraceptive care is primarily used by women and has been shown to advance equality of opportunity – a national goal. Enabling a few employers to deny health care that others are guaranteed is contrary to foundational American separation of church and state.
Contraceptives prevent pregnancy. Some corporate owners may believe that contraception is equivalent to abortion, but under accepted medical, legal, and scientific standards, it is not. Almost everyone understands that a woman cannot have an abortion prior to pregnancy. An employee whose employer offers health insurance cannot simply go to the ACA marketplace and get coverage. If the employer denies contraceptive coverage, the employee may not be able to afford the most effective or medically necessary method.
Regardless of what the court decides, family planning clinics in Wisconsin and throughout the country will continue to provide all approved methods of birth control confidentially to men and women. Insured or uninsured, rich or poor, in the face of persistent political and legal attacks, family planning programs will support equal justice and equal access under law.
Lon Newman is Director of Public Affairs for Family Planning Health Services