Home / Crimes Against Women / Birth Control And Female Sexuality Put On Trial Again As SCOTUS Hears Zubik v. Burwell
Photo by Mark Wilson/Getty Images
Photo by Mark Wilson/Getty Images

Birth Control And Female Sexuality Put On Trial Again As SCOTUS Hears Zubik v. Burwell

The U.S. Supreme Court heard a major case regarding the Affordable Care Act’s birth control benefit on Wednesday, Zubik v Burwell. 

As Vox has notedZubik bears certain similarities to Hobby Lobby, which ruled in 2014 that “closely-held corporations” did not have to comply with the regulation under the ACA requiring all employer – sponsored health insurance cover birth controlWhereas both cases deal with contraception and religious freedom as it relates to employer-sponsored health insurance, it is believed that Zubik may be more important in terms of precedent.

“I think a victory for the plaintiffs here would largely confirm many of the worst fears that liberals had after Hobby Lobby,” Ian Millhiser, a senior fellow at the Center for American Progress, told Vox. “Hobby Lobby opened the door to religious objections being used to diminish the rights of third parties, but Zubik will tell us if that’s actually going to happen.”

The Affordable Care Act requires that insurers cover all forms of contraception without any copays, a provision which in particular offended the ideologies of many social conservatives. This among general obstructionism towards President Obama has helped fuel a seemingly endless series of legal challenges to the birth control provision and the ACA in its entirety.

During the time of ACA’s drafting, the Obama administration agreed out of sympathy towards Catholic-affiliated institutions to make two major exceptions to the birth control provision:

  1. Churches and houses of worship are entirely exempt. They can offer insurance plans with no contraceptive coverage, and their employees have to get other insurance if they want coverage for birth control.
  2. Religiously affiliated nonprofits, such as Catholic hospitals or universities, can fill out a two-page form informing the government that they object to providing birth control coverage to their employees.

In Hobby Lobby, a craft store chain located in Oklahoma, the religious owners wanted to take advantage of the exemption deal too, despite their company being for-profit. The Supreme Court found in their favor, ruling that “closely-held” for-profit corporations should also be exempt from providing contraceptive coverage if the owners object on religious grounds.

“Closely-held” refers to companies that are family owned, or otherwise with minimal layers of ownership.

Despite reaching this ruling, SCOTUS didn’t exactly tell the federal government how they should handle this via ACA, so the Obama administration decided to offer for-profit religious corporations the same accommodations that religious nonprofits receive. For many evangelical Christian and Catholic nonprofits, this simply was not satisfactory enough for them, arguing that merely just filling out the two-page form makes them complicit in “sin” because it “facilitates” access to birth control.

As a result, the groups sued, claiming that the accommodation violates their rights under the Religious Freedom Restoration Act (RFRA) of 1993, the same act Hobby Lobby was based on. The most well-known plaintiffs in the seven cases the Supreme Court will consider in Zubik are the Little Sisters of the Poor, a group of Catholic nuns who run nursing homes in Maryland and Colorado, whose sympathetic characters have led to hyperbolic and patently false claims from the GOP that President Obama is “forcing” nuns to pay for birth control against their will.

Photo by Mark Wilson/Getty Images
Photo by Mark Wilson/Getty Images

But this is precisely where the Little Sisters case in particular is bizarre, and clearly wreaks of grandstanding. Even if the nuns lose the case and have to fill out the dreaded two-page exemption form, their employees still can’t get birth control through their church plan allowing them to outright deny coverage.

Additionally, the Obama administration and critics of the case argue further that they very presence of an opt-out means that nuns and other objectors aren’t complicit in coverage compromising their beliefs, but just because they object doesn’t mean they can unlawfully block their insurance plans from offering birth control through other means.

As legal analyst Jessica Mason Pieklo noted at Rewire, “The employees and students are going to obtain birth control whether the organizations want it or not.” When the Seventh Circuit Court of Appeals ruled against the University of Notre Dame, Judge Richard Posner said that signing the form doesn’t actually “trigger” birth control coverage, because the ACA already entitles the organization’s employees to that coverage by default. The exception allows religious employers to not be involved in that coverage, but that doesn’t extend to the employers’ insurers.

While both sides are arguing that religious freedom itself is at stake in this case, the defendants are adamant that if the Court rules in favor of the plaintiffs, it will open the door to a seemingly limitless number of religious exemptions that the courts will not be able to properly evaluate, weakening the ACA on the whole.

Beyond this reality, what’s really at stake is the dignity and autonomy of women who use birth control, to not be shamed for using something they need to assert independence over their life and unilaterally retain control over their reproductive rights.

Providing comprehensive health care to women is not a luxury. It is a fundamental right granted to all women in this country.

One can only hope the absence of Justice Scalia tips the court in favor of the defense.

About Adam Ciminello

Entrepreneurship, Social Justice, and the idea of Bono never performing again are all things that excite me. And yes, my grandma is cooler than yours. Say hi sometime on twitter @Aciminello

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