Policy/Biz

Supreme Court’s Contraceptive Mandate Ruling Not Nearly As Bad For Women Now As It Will Be For Everybody Later

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The Supreme Court's contraception ruling could snowball from one crafts store's complaints to a nationwide cry for religious freedom. Reuters

On Monday, the Supreme Court ruled in two joint cases that the government requiring family-owned businesses to offer certain forms of contraception, which those families said violated their religious beliefs, in fact violated a federal law protecting religious freedom.

Under the ruling, the government may only mandate 16 of the 20 contraceptive devices approved by the Food and Drug Administration (FDA), including condoms, sponges, and monthly birth control pills, but the four remaining devices — two forms of morning-after pills and intrauterine devices (IUDs) — were found in a 5-4 ruling to violate the two companies’ belief that abortion is immoral, and offering them to employees would reflect an implicit endorsement of the devices.

What This Means Now

While today’s news swirls with discussion over which reproductive freedoms women should enjoy — most of which get stymied before they reach the president — there are a number of silver linings to consider in Monday’s ruling. For one, the part of the mandate that requires coverage of preventative medicine and devices, such as birth control pills, remains the same. Hobby Lobby and Conestoga Wood specialties, the two companies who sued the U.S. government, even conceded they have no objection to these forms of birth control. They take up issue with the four methods they believe, for all intents and purposes, abort pregnancies rather than prevent them.

This distinction is, by many accounts, a definitional one: Does pregnancy occur when a sperm fertilizes an egg? Or does it occur when the egg attaches to the uterus? Hobby Lobby sides with the first option, which means morning after pills and IUDs lean more toward being agents of abortion than toward your ordinary sperm-blocking condom.

That five of the nine justices sided with this philosophy isn’t necessarily a bad thing for women. While IUDs are the most common form of birth control around the world, in the U.S. only 8.5 percent of women use them. Proper condom use yields success rates fractions of a percent lower than implantable devices, for pennies on the dollar. As Justice Ruth Bader Ginsberg writes in her dissenting opinion, an IUD would cost a woman earning minimum wage equal to one month’s pay.

In a perfect world, employers would recognize the science behind the health benefits more than the religious freedoms they appear to violate. In a more practical sense, the definitional barrier that stands between women seeking comprehensive health benefits at work is best overcome with present cost and access. It is a victory, albeit a small one, if a fundamentally religious for-profit company sides with forms of contraception whose health benefits include preventing pregnancy, such as condoms, as well as stabilizing hormone levels, such as birth control. This tiny concession, while admirable to a certain extent, is little more than a fragile rip, which, without the proper buffers in place, could turn in a hurry into a full-blown run.

What This Means Later

The judicial branch of the U.S. government, despite what fourth-graders learn in social studies, actually does more than officiate the law. In certain cases, it also creates it. When the world introduces new technologies, the impact of which people have no clue how to predict, the judicial system tends to run on a wait-and-see basis. This is revealed in major cases, like Internet privacy, and more minor ones that set a precedent.

When it comes to the latest ruling, Ginsberg lays the hazards on the table, plain to see: When it comes to medical oversight, how far does religious protection go? Would the Court’s exemption, she writes, extend to employers with “religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?” Hobby Lobby’s victory now makes asking about those groups worthwhile, too.

It sends the dangerous message that corporations (Hobby Lobby is incorporated, after all) can be treated as Mom-and-Pop stores, who don’t need to adhere to the same legal restrictions as larger companies that carry dozens, if not hundreds or thousands, of employees. In siding with the two companies, the Court not only prizes the interests of the business owner above the business as an entity — a lesser offense from a personal freedoms standpoint — but does so in a way that entangles women’s rights, religion, and cutting-edge theories of medical science.

It found itself at perhaps the most significant intersection of the 21st century, where human and corporate rights coalesce, and it confused one for the other. It may not be long before business owners with insatiable religious fervor decide to align their businesses with their ideals in full, suing the U.S. government in droves to lobby for their own right to practice their beliefs through commerce. Call it speculation, but that is the curious risk you find in major cases such as this: Unless there is a court system to drive a stake through legal loopholes, on a long enough timeline people will happily jump through them. Get your blood transfusions and antidepressants while you still can.

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