It’s a bad week for women’s rights.
Closely following a decision to strike down buffer zone laws protecting abortion clinic-goers from harassment and intimidation, a majority of the Supreme Court offered a dubious interpretation of the Religious Freedom Restoration Act in order to limit access to reproductive health resources. Four hugely important types of contraception— Plan B, Ella, copper and hormonal Intrauterine Devices— were guaranteed insurance coverage under the Affordable Care Act. Now some small businesses whose owners hold that contraception violates their religious convictions will be able to deny their employees that coverage.
Justice Samuel Alito, who authored the court opinion for Burwell v. Hobby Lobby, contends that the contraceptive mandate places an unconstitutional burden on the conscience of the families who own Hobby Lobby and Conestoga Wood Specialties, because “according to their religious beliefs the four contraceptive methods at issue are abortifacients,” drugs which induce abortion of an embryo or fetus. In accepting this argument as valid, the court is siding with a personal claim that contradicts medical fact. Not one of the four debated methods of contraception is an abortifacient.
Take for example the IUD, one of the most effective methods of birth control available, more reliable than the Pill. It’s a primarily prophylactic device that can be used as emergency contraception. And even in that situation, it serves to prevent fertilization; it doesn’t— as Hobby Lobby’s “sincere belief” would have it— terminate a pregnancy. In applying the RFRA to the Hobby Lobby case, the SCOTUS is choosing to uphold a corporation’s right to ignorance poorly disguised as theology.
Not that SCOTUS had any shortage of expert testimonial: an amicus curiae from the Physician’s for Reproductive Health confirms the inaccuracy of Hobby Lobby’s ideas about abortifacients. Unsurprisingly, this decision has much less to do with the categorization of birth control methods than it does the legislating and regulating of women’s reproductive decisions. In her dissent, Justice Ruth Bader Ginsburg wrote that this precedent will be extrapolated to apply to any medical necessity in conflict with religious beliefs: vaccinations, blood transfusions, antidepressants. She’s wrong, though. Those corporate and political leaders who call the contraception coverage mandate “anti-freedom” are far more interested in policing women’s sexuality than applying religious values to medicine at large.
The legality of this ruling rests on the RFRA clause that specifies that a mandate may only burden free exercise of religion if it is both “a compelling government interest” and “the least restrictive way of furthering that interest.” Alito manages to get out of the second condition by suggesting that government can instead carry the onus of covering costs for contraception like IUDs, a “less restrictive” way to finance birth control— this, he wrote in the opinion, will mean the net impact of this ruling on women is zero.
What Alito and the rest of the all-male majority don’t seem to understand is that birth control requires both immediacy and consistency. By the time Congress figures out a plan for making Ella, Plan B, and IUDs free again for Hobby Lobby employees— though it’s unlikely they really will, given the low level of commitment they seem to feel for reproductive rights— it would certainly be too late. That means unwanted pregnancies and, as Hobby Lobby and its peers don’t seem to grasp, actual abortions. For the many women for whom sex involves neither their consent nor communication, including survivors of marital and domestic rape, regular access to contraception is an absolute necessity.
The immediate, continuous and free provision of all forms of contraception, not Alito’s sometime-maybe-in-the-future government contingency plan, is imperative to furthering the interest of reproductive rights, and women’s rights on the whole. Any ruling that gets in the way is a threat to our autonomy and our equality.