The Supreme Court heard arguments on March 25 about a highly controversial case involving two for-profit companies that object, on the grounds of “religious liberty,” to the free contraception mandate in the Affordable Care Act.
If the justices affirm the companies’ religious claims, it could have far-reaching repercussions that go far beyond women’s rights and affect many aspects of social, economic and political life.
For instance, if privately owned companies are found to have the religious right to deny coverage for certain kinds of birth control, that could open the floodgates to objections to such equally vital health procedures as blood transfusions, immunizations, and stem cell and psychiatric treatment. And every possible federal statute would be open to scrutiny, including civil rights, safety and employment law, covering the minimum wage, overtime, child labor, sexual harassment and Social Security.
But make no mistake. The immediate, primary aim of this case is to strike a fatal blow at the Affordable Care Act, a major objective of the Republican Party and its masters on Wall Street. At the very least, it aims to cut the contraception mandate from the ACA. That would undoubtedly give a green light to companies to continue to discriminate against women and lesbian, gay, bisexual, transgender and queer people – and that would be a direct attack on their rights as workers, which include their reproductive rights.
There are so many ramifications to this case that it racked up a record 84 friend-of-the-court briefs, with groups equally divided for and against. For instance, Michigan and 19 other states came down on the side of “protecting religious freedom,” while California, 14 other states and the District of Columbia argued against granting religious rights to for-profit companies. Other briefs were filed by women’s, legal and civil rights groups.
Court hearing exposes divided court
The three women on the court directed pointed questions at the plaintiffs’ lawyer, Paul Clement, who led the attack on the ACA in the Supreme Court in 2012 and defended the Defense of Marriage Act in 2013. The two plaintiffs are Hobby Lobby, a crafts business owned by the Green family, which says it runs its 500 stores with 13,000 employees according to Christian principles; and Conestoga Wood Specialties, a lumber company owned by Mennonites who oppose all forms of birth control. The conservative justices grilled Solicitor General Donald B. Verrilli Jr., who defended the ACA mandate.
Only Justice Anthony Kennedy raised the question of whether it would be just for an employer’s rights to trump the rights of its employees. When Justice Elena Kagan said that a simple solution would be for companies not to offer health insurance, but to give employees a stipend to buy their own insurance and pay a monetary penalty for not offering insurance, Justice Scalia countered that that would interfere with the businesses’ right to attract employees.
What no one mentioned is that Hobby Lobby’s health care insurance until 2012, when it initiated the suit, covered two of the four methods of birth control it now deems abortifacients – two types of emergency contraception, Plan B and Ella. “The burden of this coverage was apparently so insignificant that God, and Hobby Lobby executives, never noticed it until the mandate became a political issue,” wrote Mother Jones magazine on March 21. The other two methods are intrauterine devices.
Mother Jones observed that the fact that Hobby Lobby once covered the drugs it now objects to is, according to Gretchen Borchelt, senior counsel of the National Women’s Law Center, “evidence that these cases are part of a broader effort to undermine the Affordable Care Act and push new legal theories that could result in businesses being allowed to break the law and harm others under the guise of religious freedom.”
The ultimate decision hinges on the court’s interpretation of the 1993 Religious Freedom Restoration Act, which requires the federal government to meet high standards when posing “a substantial burden” on religious beliefs. But given the court’s unprecedented 2010 Citizens United decision, which extended the right of free speech to corporations, it’s highly possible there will be a 5-4 split decision that further expands business rights.
In fact, Chief Justice John G. Roberts Jr. proposed just such a solution. He suggested that the religious convictions of private business owners could be honored under the RFRA, though granting such rights to publicly owned corporations is an entirely different issue.
The court will offer its opinion in June. But that doesn’t mean that progressive people, informed workers and the oppressed will agree with or accept it. One obvious way to equitably resolve this case is to switch to universal health care coverage that puts health care into the workers’ hands. But corporations and their politicians in Washington would never willingly agree to such a “socialist” solution.
If the court denies women’s and workers’ rights, that will open up a new avenue of struggle against the undemocratic Supreme Court and the rest of the bourgeois government, the bosses and Wall Street. Widening the class struggle is essential in this era of dead-end capitalism.
Part 2 covers why contraception is essential for women’s health and rights, the far-right think tank financing legal suits, and why a finding for the companies would be a total abrogation of current law.