My Choice or My Boss's?

Should employers be able to deny employees contraceptive coverage on the basis of religious objections?

background info

Under the Religious Freedom Restoration Act, the government may not substantially burden a person’s exercise of religion, unless doing so would further a compelling governmental interest and is also the least restrictive method of furthering said interest.

Easy access to contraceptives is a compelling governmental interest. 70% percent of women in the United States who are of reproductive age are at risk of unintended pregnancy. The ability to prevent having children is proven to better women's lives, allowing for greater financial security and better education. Women who use birth control are more likely to receive higher education and a higher paying job. Those who had access to birth control from ages 18-21 earned 11% more annually. Clearly, access to contraceptives is extremely important. However, people disagree on who should provide contraceptive coverage.

central questions

Whose autonomy is more important, that of the employer or the employee?
Should one person's religious beliefs limit another's autonomy?

stakeholders

Women, especially those who would be unable to afford contraceptives without the help of their employer. The 2020 Supreme Court Ruling on ACA's contraceptive mandate meant that up to 126,000 women will lose access to contraceptives.
Employers, particularly those who hold religious beliefs.
People affected by the precedent set in cases where the Supreme Court ruled that people with religious objects can limit others' insurance coverage.

ethical principles to consider:

Autonomy. Competent adults should have the right to make their own decisions.
Beneficence. We are obligated to bring about good in our actions, rather than cause harm.

Figure 1. Contraceptive use visual: “Insurance Coverage of Contraception.” Guttmacher Institute, Jan. 2020, www.guttmacher.org/evidence-you-can-use/insurance-coverage-contraception.

The visual on the left shows just how vital contraceptives are. The essential question doesn't concern whether or not contraceptives should be used. Rather, it asks whether or not employers must be involved in insuring access. However, those two questions are linked, since there is a cost barrier with contraceptives, and women need easy access in order to use them.

Figure 2. The Greens: Seattle Times Staff. “5 Things to Know about Hobby Lobby's Owners.” The Seattle Times, The Seattle Times Company, 2 July 2014, www.seattletimes.com/nation-world/5-things-to-know-about-hobby-lobbys-owners/.

The Legal Side

The legal situation fluctuates: a lot of what former President Obama did, current President Trump is now undoing. Since most of the rules for contraceptive coverage are covered in the ACA, administrations are mostly just creating or closing loopholes. The Biden administration will likely try to reverse Trump’s decisions in 2021. However, SCOTUS is largely responsible for making change about contraceptive coverage, and women's rights are almost always at risk.

In 2014, the Supreme Court ruled that for-profit organizations with

religious affiliations can be exempt from the Affordable Care Act’s

preventative health service mandate. The Greens, who own Hobby Lobby as well as other corporations, argued that a contraceptive mandate violated the Religious Freedom Restoration Act and the First Amendment. The Court ruled that a for-profit corporation can count as “persons”, and therefore may exercise its right to practice religion freely. The Court then ruled that the contraceptive mandate imposed a substantial burden and that the mandate was not the least restrictive method of providing contraceptives to women. Ruth Bader Ginsburg and three other judges dissented.

In addition, The Court ruled that a business must be “closely held”, which means that only a few people own it. About fifty percent of working Americans work for a closely held business, yet many of those were already exempt from

providing insurance since they comprise 50 or less employees. Though the Supreme Court ruled in favor of Hobby Lobby in 2014, the Obama Administration created a loophole that allowed women to access

contraceptives directly from their health insurance company at no cost.

While federal law is important, state law takes precedent. States legislature

may mirror federal law, or it may be stricter or less strict. Some states don’t allow any exemptions to providing coverage, religious or otherwise. Most stuck with the Obama Administration’s decision, and only a few adopted the Trump Administration’s policy of allowing exemptions due to moral objections. However, many states have attempted to expand exemptions, restrict reproductive rights, and generally limit women's access to quality healthcare. These cases failed before the Supreme Court, but the confirmation of Supreme Court Justice Amy Coney Barrett has shifted the court further right, raising concern that women's reproductive rights will soon be under fire.

Figure 3. Ruth Bader Ginsburg: Rosenberg, Andrew. “Ruth Bader Ginsburg's Death Is One More Terrible Blow in a Year of Loss.” Scientific American, Scientific American, 20 Sept. 2020, www.scientificamerican.com/article/ruth-bader-ginsburgs-death-is-one-more-terrible-blow-in-a-year-of-loss1/.

Precedent and Ruth Bader Ginsburg's Dissent

Though the Supreme Court's ruled in favor of Hobby Lobby in 2014, Justice Ruth Bader Ginsburg and three other Justices dissented. Ginsburg's considerations are highly relevant when discussing whether or not employers must provide contraceptive coverage. This summary excludes details that involved complicated legal language or didn't directly pertain to the issue at hand.

Ginsburg held that in prioritizing the needs of corporations, the Court overlooked the pressing needs of the vast majority of women who rely on their employer to receive contraceptives. She added that these women may not agree with their employers religious beliefs, so the decision to treat corporations as people who can hold religious beliefs clearly prioritized the beliefs of corporations over the beliefs of women.
There are many, many religious objections to various aspects of health care. Ginsburg worried that the precedent set by the Hobby Lobby case would allow for new cases to arise in which employers didn't want to cover other items or procedures, such as blood transfusions for Jehovah's Witnesses.
Lastly, Ginsburg was concerned that this ruling would essentially provide a license for discrimination, in that employers can now look for opportunities to discriminate and base them in religious beliefs. As she wrote, the decision "holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."

Opposing Views:

Figure 4. Woman holds sign: Ahmed, Osub. “Efforts by Anti-Choice Advocates to Redefine and Limit Contraception.” Center for American Progress, 26 Mar. 2018, www.americanprogress.org/issues/women/news/2018/03/26/448373/efforts-anti-choice-advocates-redefine-limit-contraception/.

The employer should always provide contraceptive coverage:

Some believe that whether or not to use contraceptives should be a woman's choice, not her employer's. They argue that forcing women to pay for contraceptives out of pocket is as good as cutting off access entirely. In addition, precedent and excess of religious freedom provides too much opportunity for discrimination. Though The Supreme Court has consistently ruled that corporations can be considered "persons" and can therefore hold religious beliefs, people who support contraceptive coverage often say that the needs of individual women are more important the needs of a corporation. Additionally, lack of contraceptive coverage disproportionately impacts women of color and poor women.

IUDS are far more expensive than other forms of contraceptives, such as birth control or plan B, but IUDS are also extremely effective. Recently, the Court ruled that some closely-held companies do not have to cover the cost of IUDS. Women’s rights groups view the decision as a violation of autonomy and an ineffective decision, as restricting access to contraceptives has been proven to increase abortions.

Notably, arguments against reproductive rights are often based in religion rather than science. While religious beliefs are entirely valid, they can sometimes cause people to overlook or ignore key facts. Because of this, religious views are often discredited as a legitimate argument for why something should or shouldn't happen.

Figure 5. Women protesting: Toobin, Jeffrey. “On Hobby Lobby, Ginsburg Was Right.” The New Yorker, The New Yorker, 30 Sept. 2014, www.newyorker.com/news/daily-comment/hobby-lobbys-troubling-aftermath.

The employer should be able to deny contraceptive coverage:

Others believe that religious freedom trumps individual needs. Instead of prioritizing easy access to contraceptives, the law should prioritize religious freedom. The Religious Freedom Restoration Act (RFRA) states that the government may place a burden on the exercise of religious if that burden is the least restrictive means of advancing the government's interest. Following that act, people argue that there are less restrictive means for the government to provide access to contraceptives. Just because such methods aren't currently in use doesn't mean they don't exist.

In Burwell v. Hobby Lobby, the Greens claimed that some types of contraceptives, such as IUDS were abortion inducers. Abortion did not align with their religious beliefs, so they claimed that providing contraceptive coverage violated their First Amendment and Religious Freedom Restoration Act rights. However, experts agree that the contraceptives in question were not abortion inducers. It's important to note that some arguments against contraceptive coverage not based in fact, or are skewed because of religious views.

Survey:

Presenter’s Statement:

Though access to contraceptives has always been a controversial issue, the election of Donald Trump and the appointment of Amy Coney Barrett made the fight for reproductive rights even more pressing. Religion and reproductive rights clash too often, so I wanted to look into how the law balances the two when it comes to contraceptive coverage. When Amy Coney Barrett joined the Supreme Court a few months ago, there was a lot of talk about Roe v. Wade potentially being overturned. Uncertainty about the future of abortion and contraceptives prompted me to look further into this topic. I wanted to understand who makes decisions about contraceptives, and what factors play into those decisions. Though I have always believed that easy access to contraceptives should be guaranteed, I wanted to learn more about why people argue the opposite. Religion was never a big part of my life, but it plays a huge role in how many people see the world, so I explored how religion impacts law. There are 61 million women of reproductive age in the United States, so contraceptive coverage is clearly an important issue. However, freedom to exercise religion is an important issue as well, so the goal of my exhibit is to consider how to balance religious views with preventative health needs.

-Sara Grace Dalton

Learn More:

Guttmacher Institute, https://www.guttmacher.org/united-states/contraception

Guttmacher Article 1: https://www.guttmacher.org/evidence-you-can-use/insurance-coverage-contraception

Guttmacher Article 2: https://www.guttmacher.org/fact-sheet/contraceptive-use-united-states

Planned Parenthood on Birth Control: https://www.plannedparenthoodaction.org/issues/birth-control

Annotated Bibliography

Adamczyk, Alicia. “The Supreme Court's Ruling on the ACA's Birth Control Mandate Could

Cost Women Hundreds of Dollars Each Year.” CNBC, CNBC, 8 July 2020, www.cnbc.com/2020/07/08/what-to-know-about-the-supreme-courts-birth-control-mandate-decision.html.

Alicia Adamczyk writes that we now have a cost barrier in access to contraceptives. An estimated 126,000 women will lose access, and many women cannot afford to pay out of pocket. Easy access to contraceptives is extremely important for women and has been proven to make life easier. This article provided data I used when describing who the stakeholders are.

Arndt , Anya. “Legal Precedent, Religious Freedom, and the Hobby Lobby Court Decision.”

Citizens Project, 15 July 2014, www.citizensproject.org/2014/07/15/legal-precedent-religious-freedom-and-the-hobby-lobby-court-decision/.

Anya Arndt warns that the Hobby Lobby case set a dangerous precedent in that employers can now look for opportunities to discriminate and base them in religious beliefs. She notes Ruth Bader Ginsberg’s dissent. I used this article to gain deeper understanding of the implications of Burwell v. Hobby Lobby, and it influenced me to add a section on precedent.

“Burwell v. Hobby Lobby and Birth Control.” Planned Parenthood ,

www.plannedparenthoodaction.org/issues/birth-control/burwell-v-hobby-lobby.

Despite bias, Planned Parenthood provides accurate information. Though the Supreme Court ruled in favor of Hobby Lobby in 2014, the Obama Administration created a loophole that allowed women to access contraceptives directly from their health insurance company at no cost. I used this article when writing about the legal side, since it’s important to understand that Supreme Court cases are important, but they don’t always change absolutely everything.

“Contraceptive Use in the United States.” Guttmacher Institute, Apr. 2020,

www.guttmacher.org/fact-sheet/contraceptive-use-united-states.

This fact sheet by the Guttmacher Institution provided many useful statistics about contraceptives, including who uses them and how they benefit women. I used these when describing why contraceptives are necessary. It was important to establish that the question was not about whether or not women should use contraceptives at all, and the facts in this article helped me do that.

Dockterman, Eliana. “Supreme Court Hobby Lobby Contraception Ruling: What Women Should Know.” Time, Time, 1 July 2014, https://time.com/2941323/supreme-court-contraception-ruling-hobby-lobby/.

The Court ruled that a business must be “closely held”, which means that only a few people own it. About fifty percent of working Americans work for a closely held business, yet many of those were already exempt from providing insurance since they comprise 50 or less employees. IUDs are extremely effective when compared to other contraceptives. The Court ruled that some companies (if they meet the above requirements), do not have to cover IUDs. Women’s rights groups view the decision as a violation of autonomy and an ineffective decision, as restricting access to contraceptives has been proven to increase abortions. Ruth Bader Ginsburg raised the concern that the decision may open opportunities to challenge other insurance mandates that other religions disagree with, such as blood transfusions. This source influenced my writing on Ginsburg’s dissent and the pro-contraceptive coverage perspective.

Duignan, Brian. “Burwell v. Hobby Lobby Stores, Inc.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 23 June 2020, www.britannica.com/topic/Burwell-v-Hobby-Lobby-Stores-Inc.

In 2014, the Supreme Court ruled that for-profit organizations with religious affiliations can be exempt from the Affordable Care Act’s preventative health service mandate. The Greens, who owned Hobby Lobby as well as other corporations, argued that a contraceptive mandate violated the Religious Freedom Restoration Act and the First Amendment. The Court ruled that a for-profit corporation can count as “persons”, and therefore may exercise its right to practice religion freely. The Court then ruled that the contraceptive mandate imposed a substantial burden and that the mandate was not the least restrictive method of providing contraceptives to women. Ruth Bader Ginsburg and three other judges dissented.

“H.R.1308 - 103rd Congress (1993-1994): Religious Freedom Restoration Act of 1993.”

Congress.gov, www.congress.gov/bill/103rd-congress/house-bill/1308.

Provides a summary of the Religious Freedom Restoration Act. The government may not substantially burden a person’s exercise of religion, unless doing so would further a compelling governmental interest and is also the least restrictive method of furthering said interest. I used this summary several times when citing the RFRA, which is critical to my issue.

Keith, Katie. “Supreme Court Upholds Broad Exemptions To Contraceptive Mandate-For Now:

Health Affairs Blog.” Health Affairs, 9 July 2020, www.healthaffairs.org/do/10.1377/hblog20200708.110645/full/.

Obama-era law allowed certain corporations with religious objections to opt out of contraceptive coverage, but the insurer or a third party still had to pay for coverage. The Hobby Lobby case then extended the exemption to for-profit corporations. Recently, SCOTUS ruled in favor a Trump administration proposal that employers can now opt out of the accommodation entirely, meaning that they do not have to sign for an insurer to pay for coverage. Though I didn’t end up including moral exemption in my project, I still gathered information on it. I did use info on the Trump Administration’s decision when writing about the legal side of the issue.

Rovner, Julie. “High Court Allows Employers To Opt Out Of ACA’s Mandate On Birth Control

Coverage By Julie Rovner JULY 8, 2020.” Kaiser Health News, 8 July 2020, https://khn.org/news/high-court-allows-employers-to-opt-out-of-acas-mandate-on-birth-control-coverage/. Accessed 15 November 2020.

A recent Supreme Court decision that allowed employers to refuse to provide contraceptive coverage to employees if they have a “religious or moral objection”. The Affordable Care Act doesn’t explicitly require contraceptive coverage, which means that who can duck providing preventative health services is mostly case-by-case. Many religious nonprofits, who were previously permitted to pass responsibility for coverage directly to the health insurer, still claim that doing this The Trump Administration added that employers who have a moral objection may also be exempt. This article was one of many that echoed what I already knew, but provided one or two extra details. I learned more about the Affordable Care Act.

Salganicoff, Alina, et al. “State and Federal Contraceptive Coverage Requirements: Implications for Women and Employers.” KFF, Kaiser Family Foundation, 19 June 2019, www.kff.org/womens-health-policy/issue-brief/state-and-federal-contraceptive-coverage-requirements-implications-for-women-and-employers/.

While federal law is important, state law takes precedent. States legislature may mirror federal law, or it may be stricter or less strict. Some states don’t allow any exemptions, religious or otherwise. Most stuck with the Obama Administration’s decision, and only a few adopted the Trump Administration’s policy of allowing exemptions due to moral objections. This information in this article was super important to my website, and I learned that though federal law is important, it doesn’t always change how states operate individually.

Stieg, Cory. “Birth Control Access Has Contributed to Women's Wage Increases, Says New Study.” CNBC, CNBC, 26 Sept. 2019, www.cnbc.com/2019/09/26/contraception-birth-control-access-contributes-to-womens-wage-increases-says-new-study.html.

Though the question is not whether or not women should have access to birth control, it’s clear that fewer women would have access to birth control without a contraceptive mandate. Women who use birth control are more likely to receive higher education and a higher paying job. I learned that those who had access to birth control from ages 18-21 earned 11% more annually. These statistics came in handy when I provided background info to establish why contraceptives are necessary for women.

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