Features » February 21, 2014
Free Contraception Is in Danger Again
A Supreme Court case may prioritize employers’ religious freedoms over women’s health.
It was inevitable that the mandate for contraception would end up in the Supreme Court. For the far-right wing, dismantling any part of Obamacare and restricting women’s sexuality would be a triumphant political victory.
Just when you thought an overly sexualized America couldn’t get any sillier about sex, Republicans have launched a campaign against the “contraception mandate” in the president’s new health plan program that would include birth control.
Mike Huckabee, the former Republican governor of Arkansas, and a potential presidential candidate, stunned many Americans when he stated at a Republican winter convention, “If the Democrats want to insult the women of America by making them believe that they are helpless without Uncle Sugar coming in and providing for them a prescription each month for birth control, because they cannot control their libido or their reproductive system without the help of the government, then so be it.” Some Republicans quietly began distancing themselves from Huckabee. Such inflammatory language, they correctly reasoned, is not the way to get women’s vote in any election year.
As they prepare for the midterm elections, the Republicans have two major goals. The first is to repeal the contraception mandate (or any other requirement) in the Affordable Care Act (Obamacare) that requires employers with more than 50 employees to pay for contraception for its workers. The second goal is to limit women’s access to abortion by promoting initiatives all over the country that attack women’s health care. That didn’t work so well in 2012, so they’ve decided to concentrate on the “unfairness” of asking anyone to pay taxes to pay for women’s contraception. Going to the Supreme Court, then, is the Republican effort to kill two birds with the one proverbial stone.
The fight over contraception began when Congress debated whether contraception should be covered by Obamacare. Republicans raged against a mandate that would require “religious” and nonprofit employers who opposed contraception and abortion to pay for the contraception of their female employees. The compromise they reached allowed a few nonprofit religious organizations to refuse to pay, as long as the women received contraceptive health care from another source.
That compromise has now returned to haunt Democrats. You could argue—and I do—that if employers opposes contraception and abortion, they should make these choices for themselves, but not for all their female employees. But it’s never been about contraception; it’s never been about abortion; it’s always been about controlling women’s sexuality, or as Mick Huckabee implied, women’s dangerous libido.
Now the president has compromised once again. In order to shield those with strong religious beliefs, he has told members of the Congressional Pro-Choice Caucus that the new compromise requires that the insurer—rather than the employer—will provide contraceptive coverage free of charge for women.
But Obama may not have the last word. It was inevitable that the mandate for contraception would end up in the Supreme Court. For the far-right wing, dismantling any part of Obamacare and restricting women’s sexuality would be a triumphant political victory. And it could actually happen.
The Little Sisters of the Poor Home for the Aged, a Catholic-run nursing home based in Denver with affiliated facilities nationwide, and other Catholic charities have objected to the “contraceptive mandate” on religious grounds. So does the Hobby Lobby, a for-profit corporation that sells model airplanes, crafts and materials for various hobbies. Both had refused to send the administration the required written notice that the order is a religious organization with “religious objections to providing coverage for contraceptive services.”
On February 14, to the surprise of many people, the Court granted the Little Sisters a temporary reprieve during which they don’t have to do the paperwork that complies with the contraception mandate. In March, the Court will hear arguments, which could extend to hundreds of other religious organizations. “Although [we are] disappointed in this temporary order,” said Sharon Levin, director of federal reproductive health policy at the National Women’s Law Center, “the court emphasized that the order ‘should not be construed as an expression of the court’s views on the merits.' … We are confident once the merits in this case are fully considered by the 10th Circuit, that it will once again uphold the birth control regulations as it did in December.”
In March, the Court will hear arguments from the Little Sisters of the Poor, the Hobby Lobby, and by then, several hundred other organizations and corporations who believe that the religious views of the company’s owners trumps the mandate to provide contraception to its employees. The Court will make its final ruling in June.
If this strikes you as bizarre , consider how conservatives speak about women. Last year, Rush Limbaugh, a popular right-wing radio host, branded a law student a “slut” because she endorsed the medical necessity of birth control. Journalist Jason Sattler, the Executive Editor of The Memo, called this “the shot heard 'round the world that opened the so-called 'War on Women.'”
He also got it right when he responded, “the worst fear many have about Republicans is that they believe a woman's body is an object to be politicized, undeserving of privacy once it has been fertilized by a man, or—if she has the wrong employer—even before.”
Despite these attacks on contraception, the public is in favor of the birth control mandate, even when the employer rejects it on religious grounds. Even so, that doesn’t predict whether the Court will decide that an employer’s religious beliefs are more important than an employee’s health care.
Women’s health advocates and feminists are both stunned and angry. Elinor Smeal, of the Feminist Majority, pointedly noted that “Religious freedom does not mean using your power as an employer to impose your views on others. If the Supreme Court accepts Hobby Lobby’s arguments, it will set a dangerous precedent—allowing your boss to determine what medicines and medical procedures you will have access to. What’s next? Will the Court allow some bosses not to cover blood transfusions, immunizations, or HIV/AIDS treatment because their contrary to their beliefs.
Guardian columnist Jill Filipovic tweeted, “What if your blood transfusions violate your employer’s religious beliefs? No surgery coverage?”
Ilyse Hogue, president of NARAL Pro-Choice America said, “Allowing this intrusion into personal decisions by their bosses opens a door that won’t easily be shut. The truth is that this is not about religious freedom, it’s about sexism, and a fear of women’s sexuality. … When the FDA held up over-the-counter status of emergency contraception for years, it wasn’t because of the medication’s efficacy or potential health risks but because of a fear it would make girls promiscuous. The same thing happened when the HPV vaccine was being reviewed”.
As one legal analyst wrote, “With very large majorities of Americans in favor of contraception, and the Women’s Rights Movement—which arose in part to obtain women’s right to use contraception, so that women would not have their lives dictated by biology—in the rearview mirror, it seemed to me to be just the sort of misogynist position that was beyond the pale in the 21st century.”
Women activists have long argued that the struggle to ban contraception and limit access to abortion has always about been about controlling women’s sexuality and transforming libidinous women into less frightening creatures. For now, the Little Sisters of the Poor are now protected from their raging libidos.
Ruth Rosen, a former columnist for the Los Angeles Times and San Francisco Chronicle, is a pioneering professor of gender and society and an award-winning journalist whose most recent book is The World Split Open: How the Modern Women's Movement Changed America. www. ruthrosen.org